IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 17TH MARCH 2008 / 27TH PHALGUNA 1929 WP(C).No. 35193 of 2007(M) -------------------------- EP.108/2006 IN O.S.NO.9/1996 of SUB COURT, HOSDRUG .................... PETITIONER: ------------ ATHIRAVALAPPIL SHARADA, D/O.AMBUNHI AND MADHAVI AMMA, RESIDING AT KALLURAVI, KANHANGAD VILLAGE, P.O.KANHANGAD SOUTH, HOSDURG TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS: ------------- 1. PUSHPAVALLI, W/O.ASHOKAN.P., KURUNTHOOR VEEDU, KANHANGAD VILLAGE, P.O.PADNAKKAD, PIN-671 532. 2. THANNODATH NARAYANI, D/O.CHIRUTHA AMMA, RESIDING AT MOOVARIKUNDU, KANHANGAD VILLAGE, P.O.PADNAKKAD, PIN-671 532. BY ADV. SRI.M.SANTHOSHKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 35193/2007 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE E.P.NO.3/2005 IN O.S.NO.9/1996 DATED 3.1.2005. EXT.P2: COPY OF E.P.NO.108/2006 IN O.S.NO.9/1996 DATED 2.11.2006. EXT.P3: COPY OF THE COUNTER FILED IN E.P.NO.108/2006 IN O.S.NO.9/1996 DATED 8.2.2007. EXT.P4: COPY OF THE E.A.NO.48/2007 IN E.P.NO.108/2006 ALONG WITH THE AFFIDAVIT DATED 8.3.2007. EXT.P5: COPY OF THE COUNTER STATEMENT IN E.A.NO.48/2007 IN E.P.NO.108/2006 DATED 14.3.2007. EXT.P6: COPY OF THE ORDER IN E.A.NO.48/2007 IN E.P.NO.108/2006 DATED 15.6.2007 EXT.P7: COPY OF THE ORDER OF THE EXECUTION COURT IN E.P.NO.108/2006 IN O.S.NO.9/1996 DATED 25.10.2007. /TRUE COPY/ P.A. TO JUDGE M.N.KRISHNAN, J. ------------------------------------------- W.P.(C).No.35193 of 2007 ------------------------------------------- Dated this the 17th day of March, 2008 JUDGMENT This is an unfortunate litigation that has come to the High Court on account of the mistake committed by all. There was an execution proceeding pending for sale of the property having an extent of 20 cents. The judgment debtor contended that the sale of 5 cents of property will be sufficient to discharge the decree debt. The court below allowed her request, but unfortunately did not direct for a schedule of this 5 cents of land to be incorporated, so as to carve out the 5 cents out of the 20 cents of property. The sale certificate is issued and thereafter an application was filed by the auction purchaser to amend the schedule, so as to identify the 5 cents of property which has been allowed by the court. It is against that decision the judgment debtor has come up with this writ petition. 2. It is submitted by the counsel for the respondents that the court permitted sale of 5 cents, but an omission of the decree holder and auction purchaser to have a separate schedule of the 5 cents is now being utilised by the judgment debtor to WPC 35193/2007 2 wipe off the rights obtained by the auction purchaser. Technically, it is sound argument and one cannot throw it out on the threshold level. But the fact remains that 5 cents out of the 20 cents of property had been sold in auction and it has been purchased. So, at least 1/4th of the entire 20 cents had devolved upon the auction purchaser as the schedule does not precisely contain description of 5 cents, she will not be able to directly obtain possession of 5 cents of property. But at the same time, it cannot be disputed that she is having title with respect to 5 cents of property out of this 20 cents. Therefore, I dispose of the writ petition as follows: I hold that the writ petitioner herein has got 5 cents out of the 20 cents of the property. But, unfortunately, it is not identifiable for lack of particulars at the time of the sale. Therefore, I direct the auction purchaser herein to file an appropriate suit for partition and get her 5 cents of property. That is one out of 4 shares of the 20 cents and thereafter, enjoy the property as the law envisages. The court may give her symbolic delivery of this 1/4th right so that her right is not lost in order to enable her to sue for partition. M.N.KRISHNAN, JUDGE csl