IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 WP(C).No. 9859 of 2008(W) -------------------------------------- OS.NO.385/2002 OF MUNSIFF COURT, OTTAPPALAM. .................... PETITIONER: ------------------- P.M.JAYAKUMAR, PAPPIYIL MANNUM PARAMBIL HOUSE, NELLAYA P.O., PALAKKAD, PIN - 679 335. BY ADVS. MR.M.R.RAJESH, SMT.A.K.PREETHA. RESPONDENTS: ------------------------ 1. GOPI EZHUTHASSAN, PULLANIKKATTIL HOUSE, EZHUVANTHALA P.O., VIA NELLAYA, OTTAPALAM. 2. C.V.SANKARANARAYANAN, CHELAKKATTUTHODI VADAKKEKARA VEEDU, EZHUVANTHALA P.O. VIA NELLAYA, OTTAPPALAM. 3. THE SUB REGISTRAR, SUB REGISTRAR'S OFFICE, CHERPULASSERI, PALAKKAD DISTRICT. R1 BY ADVS. MR.K.RAMACHANDRAN, SMT.R.MEERA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.9859/2008-W: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE I.P. 1/2005 OF SUB COURT, OTTAPPALAM. EXT.P.2: COPY OF THE OBJECTION FILED BY THE R.2. TO THE DRAFT PROCLAMATION SCHEDULE. EXT.P.3: COPY OF THE E.A. 540/07 IN E.P. 365/04 IN O.S. 385/02 IN OF MUNSIFF COURT, OTTAPPALAM. EXT.P.4: COPY OF THE E.A. 541/07 IN E.P. 365/04 IN O.S. 385/02 IN OF MUNSIFF COURT, OTTAPPALAM. EXT.P.5: COPY OF THE E.A. NO. 541/07 IN E.P. 365/04 IN O.S. 385/02 IN OF MUNSIFF COURT, OTTAPPALAM. EXT.P.6: COPY OF THE OBJECTION FILED BY THE R.1. TO EXT.P.1. EXT.P.7: COPY OF THE OBJECTION FILED BY THE R.1. TO EXT.P.2. EXT.P.8: COPY OF THE OBJECTION FILED BY THE R.2. TO EXT.P.2. EXT.P.9: COPY OF THE COMMON ORDER DT. 31/01/2008 DISMISSING EXTS.P3 AND P4. RESPONDENTS' EXHIBIT: EXT.R1.A: COPY OF THE DELIVERY ACCOUNT SUBMITTED BY THE COURT AMEEN DTD. 29/10/2007. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.9859 of 2008 - W --------------------------------- Dated this the 29th day of July, 2009 J U D G M E N T This writ petition is filed seeking the following relief: “To issue a writ in the nature of certiorari or any other writ direction or order calling for the records leading to Ext.P9 order and quashing the same and further allowing Exts.P3 and P4 petitions.” 2. The petitioner is one among the creditors of the second respondent who had moved an application before the insolvency court to declare him as an insolvent. The first respondent, pursuant to obtaining a decree in a suit for money against the second respondent, moved for execution and thereafter the property of the second respondent having an extent of 48 cents comprising a building was brought to sale to satisfy the decree debt. Sale is, admittedly, over, confirmed and delivery effected. What remains is recording the delivery of the property by the court. Meanwhile, the petitioner, one among the creditors of the second respondent who was impleaded as 14th respondent in the insolvency petition, on knowing of the W.P.(C).No.9859 of 2009 - W 2 execution proceedings on the date on which the court ordered delivery of the property, moved an application to annul the order of sale contending the matter is seized and is under consideration of the insolvency court. But, as already stated, delivery was effected and further, giving notice to the decree holder and also the debtors, first and second respondents herein, and hearing the counsel on both sides, the execution court dismissed the application moved by the petitioner. Petitioner had also moved an application for impleadment in the petition as additional counter petitioner in the pending execution proceedings. That application was also considered with the other application and an order was passed by the execution court. Ext.P9 is the copy of that order. Correctness and propriety of Ext.P9 is impeached in the petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner and first respondent. Though notice was served second respondent has not appeared. 4. The judgment debtor in his objections filed to the execution petition had given notice to the execution court by W.P.(C).No.9859 of 2009 - W 3 stating that insolvency proceedings were pending against him and so much so the further steps taken by that court putting his property to sale, confirming and delivering it to the first respondent, decree holder, was not correct, proper and legal, is the submission of the learned counsel for the petitioner. Such steps taken militated against the provisions of the Insolvency Act as it impinges the rights of other creditors of the second respondent is the further submission of the counsel. On the other hand, the learned counsel for the first respondent submitted that other than filing of objection by the judgment debtor to declare him as an insolvent, practically, no steps were taken for his prosecution and not even service on his creditors who are impleaded in the petition, and further more no receiver was appointed in that proceedings after seven years of filing of the petition. The further submission of the counsel is that the first respondent/decree holder in the present case has also not been made as a party to the insolvency proceedings and he was not given any notice of the proceedings. 5. Whatever that be, having regard to the purport and object of Section 53 of the Kerala Insolvency Act, it has to be W.P.(C).No.9859 of 2009 - W 4 stated that, once it has been brought to the notice of the court that insolvency proceedings is pending against the judgment debtor, the court should have taken such steps as are necessary and required, to be followed under law even if it proceeded further with, the sale of property of the judgment debtor. Confirmation of sale pursuant to any sale should have been kept suspended by the court awaiting orders from the insolvency court, if at all the steps for sale have proceeded. In the present case, as sale was over, confirmed and delivery effected, it is too late in the day to give any direction to the court below with respect to any order passed on sale; but, as it is found that the delivery has not been recorded, the proper course to be followed and direction that can be issued at this stage is to direct the execution court that the recording of the delivery of the property shall be subject to the final orders to be passed by the insolvency court in the proceedings pending against the second respondent/judgment debtor. Ext.P9 order impugned in the writ petition shall stand set aside. 6. The execution court shall pass appropriate further orders while recording delivery of the property as indicated above W.P.(C).No.9859 of 2009 - W 5 that the first respondent/decree holder shall not create any charge over the property delivered over, till final orders are passed by that court pursuant to orders in the insolvency proceedings. As it is noticed that insolvency proceedings against the second judgment debtor is pending without even completion of the service against the respondents, the court concerned, Sub Court, Ottappalam, is directed to take expeditious steps for completion of the service and for disposal of the petition, I.P.No.1/2005. The writ petition is disposed of as above. Transmit a copy of this judgment to the court concerned forthwith. S.S.SATHEESACHANDRAN, JUDGE. bkn/-