IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 WP(C).No. 2658 of 2008(N) ------------------------- EP.42/05 IN OS.12/2001 of SUB COURT, TIRUR .................... PETITIONER: ------------ 1. THANKAMMA JOSEPH, W/O.P.K.JOSEPH, PALAKKUDIYIL HOUSE, EDAMATTOM AMSOM DESOM, MEENACHIL TALUK, KOTTAYAM DISTRICT. 2. JESSYMOL JOSE, D/O.VARKEY CHACKO, MUTHUKATTUPARAMBIL HOUSE, KANHIRATHANAM AMSOM, KAPPUTHALA DESOM, KOTTAYAM DISTRICT. 3. V.T.EALIKUTTY, W/O.P.J.JOHN, PERUMUKKIL HOUSE, EDATHALA AMSOM, DESOM, ERNAKULAM DISTRICT. 4. V.T.MARYKUTTY, W/O.A.J.PHILIP, MEVIDAKKARA AMSOM DESOM, MEENACHIL TALUK, KOTTAYAM DISTRICT. 5. V.M.THOMAS, S/O.MATHAYI VAYAKKEL HOUSE, MEENACHIL AMSOM, KOTTAYAM DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SMT.R.MEERA RESPONDENTS: ------------- 1. SIDHI, S/O.MUHAMMED UNNI, MEAPPURATH HOUSE, AYIROOR AMSOM, PUTHIYOORATH DESOM, PONNANI TALUK, MALAPPURAM DISTRICT. 2. THE PERUMPADAPPU BUSINESS CORPORATION, PERUMPADAPPU, PONNANI. 3. V.K.ABDUL KAREEM, MANAGING PARTNER, AYIROOR, PUTHIYIRUTHI DESOM, PONNANI, MALAPPURAM. WP(C).No.2658/08 2 4. K.SASIDHARAN, PARTNER, PERUMPADAPPU BUSINESS CORPORATION, AYIROOR AMSOM, KODATHOOR DESOM, P.O.PERUMPADAPPU, PONNANI, MALAPPURAM. (R2 TO R4 DELETED FROM PARTY ARRAY VIDE ORDER ON I.A.NO.4368/08 DATED 8.7.2008) R1 BY ADV. SRI.K.P.BALASUBRAMANYAN SRI.NIRMAL. S THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.2658/08 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE E.P. NO.115/06 IN O.S.NO.215/00 OF THE SUB COURT, TIRUR DATED 31.10.2006. EXT.P1(a): TRUE COPY OF THE E.P.NO.69/06 IN O.S.NO.30/03 OF THE SUB COURT, TIRUR DATED 12.7.2006. EXT.P2: TRUE COPY OF THE E.P.NO.117/06 IN O.S.392/00 OF THE SUB COURT, TIRUR DATED 31.10.2006. EXT.P3: TRUE COPY OF THE E.P.NO.142/06 IN O.S.119/01 OF THE SUB COURT, TIRUR DATED 31.10.2006. EXT.P4: TRUE COPY OF THE E.P.NO.102/06 IN O.S.49/01 OF THE SUB COURT, TIRUR DATED 30.6.2006. EXT.P5: TRUE COPY OF THE E.P.NO.141/2006 IN O.S.NO.243/00 OF THE SUB COURT, TIRUR DATED 31.10.2006. EXT.P5(a): TRUE COPY OF THE E.P.NO.116/06 IN O.S.155/01 OF THE SUB COURT, TIRUR DATED 31.10.2006. EXT.P6: TRUE COPY OF THE E.P. FILED BY THE 1ST RESPONDENT IN E.P.42/03 IN O.S.12/2001 OF THE SUB COURT, TIRUR. /TRUE COPY/ M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.2658 of 2008 ------------------------------- Dated this the 8th July, 2008. J U D G M E N T Petitioners are the decree holders in O.S.Nos.215 of 2000 & O.S.No.30 of 2003, on the file of Sub Court, Tirur, O.S.No.392 of 2000, O.S.No.119 of 2001, O.S.No.49 of 2001 and O.S.No.243 of 2000, on the file of Munsiff Magistrate Court, Ponnani. First respondent is the decree holder in O.S.No.12 of 2001, on the file of Sub Court, Tirur. The judgment debtor in all these cases is one and the same. First respondent got properties of the judgment debtor attached and sold in execution of the decree, in E.P.No.42 of 2003 in O.S.No.12 of 2001. Petitioners instituted execution petitions in the respective courts and got the decrees transferred to Sub Court, Tirur, and subsequently filed Exts.P1 to P5(a) execution petitions. In those execution petitions, they specifically contended that the property was attached in the execution petition filed by the first respondent, and, therefore, no order of fresh attachment is necessary and the sale proceeds are to be rateably distributed and petitions are also filed under Section 73 of Code of Civil Procedure. In E.P.No.42 of 2003, W.P.(C) No.2658 of 2008 2 the attached property of the judgment debtor was sold on 17.2.2007, and on his application, as provided under Rule 72 (2) of Order XXI of Code of Civil Procedure, he was permitted to bid and set off. This petition is filed by the other decree holders for a direction to Sub Court, Tirur, to dispose of their Execution Petitions, as well as the petition filed under Rule 90 of Order XXI of Code of Civil Procedure. 2. The learned counsel appearing for the petitioners and learned counsel appearing for first respondent were heard. 3. The learned counsel appearing for the petitioners argued that when petitioners have filed execution petitions before the same Sub Court, Tirur, after getting the decrees obtained by them, in their favour against the judgment debtor, transferred to that court, with a prayer that the property of the judgment debtor stands already attached in E.P.No.42 of 2003, as provided under Section 73 of Code of Civil Procedure, there should be rateable distribution of the sale proceeds, and executing court should not have proceeded with E.P.No.42 of 2003 alone and instead should have considered all the execution petitions together. The learned counsel pointed out that under Rule 90 of Order XXI of Code of Civil Procedure, a petition to set W.P.(C) No.2658 of 2008 3 aside the sale is maintainable by any person entitled to share in rateable distribution of assets and when petitioners have already filed a petition jointly under Rule 90 of Order XXI of Code of Civil Procedure, to set aside the sale, they are entitled to get the sale set aside, in which case, property could be sold for the maximum price and the sale proceeds would be distributed among all the decree holders, and, therefore, Executing Court is to be directed to dispose of the petition filed under Rule 90 of Order XXI of Code of Civil Procedure by all the petitioners and also their execution petitions before confirmation of sale in E.P.No.42 of 2003. 4. The learned counsel appearing for first respondent argued that even though petitioners have filed execution petitions, they slept of over their right and did not seek any order for rateable distribution and allowed the property of the judgment debtor to be sold in execution of the decree in E.P.No.42 of 2003, and first respondent was permitted to bid and set off, as provided under sub-rule (2) of Rule 72 of Order XXI and in such circumstances, even if rateable distribution is possible, as provided under proviso (c) of sub-section(1) of Section 73 of Code of Civil Procedure, out of the sale proceeds, expenses for the sale is to be discharged first and secondly, the W.P.(C) No.2658 of 2008 4 amount due to the first respondent, decree holder, in whose execution petition the property was sold is to be discharged, and if that is allowed, there is no necessity to direct the executing court to dispose the matter, as there will be nothing left thereafter. 5. As rightly pointed out by the learned counsel appearing for the petitioners, Rule 90 of Order XXI of Code of Civil Procedure enables not only the judgment debtor, but a person entitled to a share in the rateable distribution, to apply for setting aside the sale on material irregularity and substantial injury caused. If the joint petition filed by the petitioners is to be allowed, then the argument of the first respondent based on proviso (c) of sub-section(1) of Section 73 of Code of Civil Procedure may not be relevant. Under such circumstances, it is necessary to direct the executing court to dispose of the petition filed under Rule 90 of Order XXI of Civil Procedure Code before proceeding with E.P.No.42 of 2003. In such circumstances, writ petition is disposed of directing executing court (Sub Court, Tirur) to dispose of the petition jointly filed by the petitioners under Rule 90 of Order XXI of Code of Civil Procedure to set aside the sale, as expeditiously as possible, and W.P.(C) No.2658 of 2008 5 also decide the question whether petitioners are entitled to rateable distribution of the assets as sought for in their respective execution petitions. The executing court is also directed not to confirm the sale, before disposal of the petition filed under Rule 90 of Order XXI of Code of Civil Procedure. M.SASIDHARAN NAMBIAR, JUDGE nj.