IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 WP(C).No. 30756 of 2009(O) -------------------------- EA NO.263/2009 IN EA NO.855/2008 IN EP.NO.70/2006 IN OS.49/1985 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER(S): ------------------------- 1. ABDUL HAMEED KHAN, S/O.ALI KHAN KULEDAR, AGED 64 YEARS, ALEMPALLAM, PUDUSSERY, PALAKKAD DISTRICT. 2. MUMTAJ, D/O.ALI KHAN KULEDAR, AGED 57 YEARS, ALEMPALLAM, PUDUSSERY, PALAKKAD DISTRICT. 3. FATHIMA, D/O.ALI KHAN KULEDAR, AGED 52 YEARS, ALEMPALLAM, PUDUSSERY, PALAKKAD DISTRICT. 4. GOWHAR, D/O.ALI KHAN KULEDAR, AGED 55 YEARS, ALEMPALLAM, PUDUSSERY, PALAKKAD DISTRICT. 5. RASHEED, S/O.ALI KHAN KULEDAR, AGED 53 YEARS, ALEMPALLAM, PUDUSSERY, PALAKKAD DISTRICT. 6. NOORJAHAN, D/O.ALI KHAN KULEDAR, AGED 50 YEARS, ALEMPALLAM, PUDUSSERY, PALAKKAD DISTRICT. 7. ASHARAF, S/O.ALI KHAN KULEDAR, AGED 45 YEARS, ALEMPALLAM, PUDUSSERY, PALAKKAD DISTRICT. BY ADVS. MR.RAJESH SIVARAMANKUTTY, SMT.A.PREMAKUMARI. Kss ..2/- ..2.... WPC.NO.30756/2009 O RESPONDENT(S): ---------------------------- A.IBRAHIM, S/O.ALAVI, AGED 62 YEARS, 16/179, NEHRU COLONY, KALMANDAPAM, PALAKKAD. ADDL.R2 & R3 IMPLEADED: R2. MUMTAJ, D/O.USMAN, ALAMKADAVU, AMBRAPALAYAM, POLLACHI, COIMBATORE DISRTRICT. R3. ASAMATHULLAKHAN, S/O. AHAMED HAMEED KHAN, THIRUMATHANTHERUVU, COIMBATORE. *(ADDL.R2 & R3 ARE IMPLEADED AS PER ORDER DTD. 5/11/2009 IN I.A.NO.13712/2009) R1 BY ADV. MR.VINOD KUMAR.C THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.30756/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SALE CERTIFICATE ISSUED IN FAVOUR OF SHAMSUDHEEN- 3RD PARTY BY THE SUB COURT, PALAKKAD IN EP.NO.70/2006 IN O.S.NO.49/85. P2: COPY OF THE AFFIDAVIT IN CHEQUE APPLICATION FILED BY THE PETITIONERS AS E.A.NO.855/2008 BEFORE THE SUB COURT, PALAKKAD. P3: COPY OF THE SALE DEED NO.3585/99 EXECUTED BY THE PETITIONERS IN FAVOUR OF THE RESPONDENT. P4: COPY OF THE ORDER DTD. 24/03/2009 IN E.A.855/2008 IN EP.NO.70/2006 IN O.S.NO.49/85 PASSED BY THE SUB COURT, PALAKKAD. P5: COPY OF THE OBJECTIONS FILED IN E.A./NO.1026/2008. P6: COPY OF THE REVIEW PETITION FILED AS E.A.NO.263/2009 BY PETITIONERS. P7: COPY OF ORDER DTD. 18/09/2009 IN E.A.NO.263/2009 IN E.A.NO.855/2008 IN EP NO.70/2006 IN O.S.NO.49/85 PASSED BY THE SUB COURT,PALAKKAD. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 30756 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of March, 2010. JUDGMENT In this writ petition filed under Article 227 of the Constitution of India, the petitioners call in question Exts.P4 and P7 and also seek a direction to allow Ext.P2 cheque application filed by the petitioners for the amount lying in deposit, which according to them belongs to them. 2. The petitioners are the petitioners in E.A.855 of 2008, which was the cheque application filed by them for withdrawing Rs.4,55,677/-, the amount which was lying in deposit as a result of the auction sale in the partition suit. The property was sold for a total amount of Rs.6,10,000/- and the decree requirements were satisfied. According to the petitioners the balance amount lying in deposit belongs to them. 3. In the meanwhile, respondent herein filed E.A.970 of 2008 for setting aside the sale already WPC. 30756/09. 2 confirmed under Order XXI Rules 90 and 91 of the Code claiming that he and one Shajahan were in possession of the property, which was brought in public auction. The copy of the sale deed is produced as Ext.P3. They also filed E.A.1026 of 2008 to condone the delay in filing the petition to set aside the sale. Both the E.As were dismissed. Thereafter Ext.P2 cheque application filed by the petitioners was also dismissed taking the view that the respondent, who sought setting aside of the sale obtained the property from the petitioners having claims and therefore the petitioners could not certainly be entitled to the entire balance amount. Copy of the order is produced as Ext.P4. 4. The grievance of the petitioners is that the property which was sold is entirely different from the property to which claim was laid by the respondent. It is contended that without ascertaining the said fact that the cheque application was dismissed. Petitioners say that there should have been a finding regarding the identity of WPC. 30756/09. 3 the property, which was brought for sale and without doing so, the dismissal of the cheque application was not proper. 5. The issue therefore is regarding the identity of the property which was sold in court auction and to ascertain whether it belongs to the petitioners or to the respondent. In the result, this petition is allowed, Ext. P4 order is set aside, the court below is directed to consider the issue regarding the identity of the property which was sold in court auction and the one claimed by the respondent and Shajahan and then consider Ext.P2 cheque application after hearing both sides. Both sides will be free to adduce fresh evidence. P. BHAVADASAN, JUDGE sb.