IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 WP(C).NO. 12863 OF 2010(O) ---------------------------------------- E.P. NO.404 OF 2004 IN OS.708/1996 OF II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER(S): ------------------------ P.D. ANTONY JOSHUA, S/O. DEVASSY, HOUSE NO. 8/300, THENGODU, KOCHI -21. BY ADV. SRI.DEVAN RAMACHANDRAN SRI.SUMESH KUMAR N.C. SRI.K.M.ANEESH SRI.SANTHOSH KUMAR RESPONDENT(S): ------------------------ 1. INDIAN BANK, HEAD OFFICE AT 31 RAJAJIO SALAI, CHENNAI - 600 001, REPRESENTED BY SENIOR MANAGER, INDIAN BANK, M.G. ROAD, ERNAKULAM. 2. MR.K.M. ANWAR SADATJH, H. NO. 2/444, CALVATHY, KOCHI -1. BY ADVOCATE S. EASWARAN FOR R1 ADV. SRI.A.S.SAJUSH PAUL FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 CERTIFIED COPY OF THE ORDER DATED 9.12.2009 IN E.P. NO.404 OF 2004 IN O.S. NO.7-8 OF 1996 OF THE PRINCIPAL SUB COURT, ERNAKULAM. EXHIBIT P2 THE ENTRIES IN THE B DIARY NOTE DOWN BY THE PETITIONER FROM THE RECORDS WITH REGARD TO E.P. NO.404 OF 2004. EXHIBIT P3 CERTIFIED COPY OF THE ORDER DATED 11.2.2010 IN E.A. NO.128 OF 2010 PETITIONER IN E.P. NO.404 OF 2004 IN O.S. NO.708 OF 1996 ON THE FILE OF THE PRINCIPAL SUB COURT, ERNAKULAM. EXHIBIT P4 THE TRUE COPY OF THE SAID ORDER DATED 15.02.2010. RESPONDENT'S EXHIBITS: ----------------------------------- EXHIBIT R2(A) COPY OF SALE NOTIFICATION DATED 1.12.2009 AND PUBLISHED IN THE MATHRUBHUMI DAILY DATED 23.1.2010. EXHIBIT R2(B) A ROUGH LOCATION SKETCH OF THE PROPERTY. EXHIBIT R2(C) A COPY OF AUCTION NOTIFICATION AND TERMS OF THE AUCTION PUBLISHED AND ORDERS OF THE COURT BELOW AND AFFIXED BY THE AMIN/PROCESS SERVER OF THE COURT BELOW. EXHIBIT R2(D) COPY OF THE REPORT SUBMITTED BY THE AMIN/PROCESS SERVER OF THE COURT BELOW. EXHIBIT R2(E) COPY OF THE RECEIPTS EVIDENCING PAYMENT OF RS.6,00,000/- BY THE SECOND RESPONDENT. TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.12863 of 2010 ==================================== Dated this the 07th day of October, 2010 J U D G M E N T This Writ Petition is at the instance of judgment debtor No.1 in E.P.No.404 of 2004 in O.S. No.708 of 1996 of the court of learned Principal Sub Judge, Ernakulam. For the amount due to respondent No.1-decree holder property of petitioner was brought up for sale. At that stage petitioner filed E.A. No.128 of 2010 under Rule 69 of Order XXI and Section 151 of the Code of Civil Procedure (for short, “the Code”) to adjourn the sale for a further period of one month (obviously for payment of the amount due under the decree). That application was dismissed by the learned Sub Judge as per Ext.P3, order on 11.02.2010. That was followed by Ext.P4, order as per which property was sold on 11.02.2010 for Rs.6,00,000/- and execution petition was posted for confirmation of sale on 12.04.2010. Exhibits P3 and P4, orders are under challenge in this Writ Petition. 2. Though various grounds are urged in the petition in challenge of the sale and though it is contended by learned counsel for respondent No.1 that no application to set aside sale as contemplated under Order XXI of the Code was preferred by the W.P(C) No.12863 of 2010 -: 2 :- petitioner in the executing court and hence this petition itself is not maintainable, counsel for petitioner, counsel for respondent No.1 and counsel for respondent No.2-auction purchaser (who already deposited a portion of the bid amount in the executing court) have now come to terms after consultation with parties concerned and accordingly they have settled the terms between them. Accordingly petitioner has to pay the entire decree amount as on the date of sale, i.e., 11.02.2010 (less the amount if any already paid) to respondent No.1-decree holder within a week from this day. So far as the claim of respondent No.2-auction purchaser is concerned he is willing to give up his claim for the property purchased by him in auction if petitioner pays a consolidated sum of Rs.65,000/- towards interest and costs within a week from this day. It is also agreed between the parties that the amount deposited by respondent No.2 in the executing court pursuant to his bid in the auction can be withdrawn by him. Submission made by counsel on both sides is accepted and recorded. Resultantly, Writ Petition is disposed of in the following lines: (a) Sale conducted by the executing court on W.P(C) No.12863 of 2010 -: 3 :- 11.02.2010 shall stand set aside on fulfillment of the following conditions: (i) Petitioner shall pay the entire decree amount as on the date of sale, i.e., 11.02.2010 (less the amount if any already paid) to respondent No.1 within a week from this day as above stated. (ii) Respondent No.1 shall file a statement in the executing court within a further period of one week from the date of receipt of money. (iii) Petitioner shall deposit a consolidated sum of Rs.65,000/- (Rupees Sixty five thousand only) in the executing court for payment to respondent No.2 being costs and interest on the amount deposited by W.P(C) No.12863 of 2010 -: 4 :- respondent No.2 in the executing court within a period of one week from this day. (iv) On compliance of the above conditions it will be open to respondent No.2 to withdraw the amount mentioned in clause (iii) and the amount he already deposited in the executing court. (v) On compliance of condition Nos.(i) to (iii) the sale held by the executing court on 11.02.2010 will stand set aside. (vi) In case condition Nos.(i) and (iii) are not complied with as aforesaid this petition will stand dismissed. (b) Respondent No.1 shall on receipt of the W.P(C) No.12863 of 2010 -: 5 :- amount and along with filing of the statement report full satisfaction of the decree to the executing court so that the execution petition can be closed. THOMAS P. JOSEPH, JUDGE. vsv