IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932 WP(C).No. 33467 of 2010(G) -------------------------- PETITIONERS: -------------------- 1. LALITHA,W/O.LATE V.ANIRUDHAN, K.P VII-1048, G.V.MANDIRAM, KALLUVATHUKKAL.P.O, KOLLAM. 2. ARAFATH.A.L,S/O.LATE V.ANIRUDHAN, K.P VII-1048, G.V.MANDIRAM, KALLUVATHUKKAL.P.O, KOLLAM. 3. AJITHA.A.L,D/O.LATE V.ANIRUDHAN, K.P VII-1048, G.V.MANDIRAM, KALLUVATHUKKAL.P.O, KOLLAM. BY ADVS. SRI. SIJU KAMALASANAN SRI.S.SUDHEESHKAR SMT.BINDU GEORGE RESPONDENTS: ---------------------- 1. THE FEDERAL BANK LTD, REPRESENTED BY ITS AUTHORISED OFFICER (CHIEF MANAGER), REGIONAL OFFICE, FEDERAL TOWERS, STATUE, THIRUVANANTHAPURAM-1. 2. THE BRANCH MANAGER, FEDERAL BANK LTD, KALLUVATHUKKAL BRANCH, KOLLAM DISTRICT, PIN-691578. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: vk C.K. ABDUL REHIM, J ------------------------------ WP(C) NO. 33467 OF 2010 -------------------------------------- Dated this the 10th day of November, 2010 JUDGMENT This Writ Petition is filed seeking the following reliefs: (i) To issue a writ of mandamus or any other appropriate writ or order directing the respondents 1 and 2 to receive the amount due in loan account No. ODCC 88/1994 as a full and final settlement and re-convey the residential property to the petitioners. (ii) To direct the respondents not to alienate the property comprised in Sy. No. 396/14 (old Sy. No. 9753 in Block No. 38) of Kalluvathukkal Village and the building No. 74 in Ward No.XX of Kalluvathukkal panchayath. (iii) To pass such other reliefs that this Hon'ble Court deems fit and proper. It is stated that the predecessor in interest of the petitioners had availed a loan from the respondent Bank on creating mortgage of the immovable property in question. Consequent to default committed, the respondent Bank filed a Civil Suit as O.S. No. 108/2006 2 WP(C) No. 33467/2010 before the Sub Court, Kollam and obtained a decree. The petitioners came to know about the decree only after death of the loanee. It is stated that the respondent Bank had also initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The loanee had filed a Securitisation Application before the Debt Recovery Tribunal, and that Tribunal had issued a conditional stay on payment of a sum of Rs.70,000/-. According to the petitioners, on deposit of the said amount the respondent Bank had withdrawn the proceedings initiated under the SARFAESI Act, clandestinely suppressing the fact that they have got an ex-parte decree in the Civil Suit. However the decree passed by the Civil Court was executed and the property in question was bid in auction by the respondent Bank, on obtaining permission in that respect from the Execution Court. 2. Grievance of the petitioner is that the 3 WP(C) No. 33467/2010 respondent Bank had pursued the proceedings before the execution court without disclosing the remittance of Rs.70,000/- made during pendency of the matter before the Debt Recovery Tribunal. It is further stated that the petitioners have filed applications before the execution court seeking to set aside the ex-parte decree and to stay the proceedings, and as per Exts.P6 and P6 (a) orders of the Sub Court, those applications were dismissed. Now the petitioners are seeking permission to pay off the liability and also seeking re-conveyance of the property which was already bid in auction by the respondent Bank. 3. It is evident that the property in question was sold in execution of a decree by a competent Civil Court. If the petitioners are seeking to set aside the sale, the remedy lies before that Court as provided under Order XXI of Code of Civil Procedure. Without setting aside the sale, through proper proceedings this Court could not interfere with the matter at this stage to order re- conveyance or re-possession of the property in question. 4 WP(C) No. 33467/2010 4. Under the above circumstances, the Writ Petition is devoid of merits and the same is accordingly dismissed without prejudice to rights of the petitioner to approach the execution court invoking remedies available under the Code of Civil Procedure. C.K. ABDUL REHIM JUDGE dnc