IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 WP(C).No.238 of 2009 (C) ------------------------------- OS.481/2004 of SUB COURT, VADAKARA .................... PETITIONER/JUDGMENT DEBTOR/RESPONDENT IN E.P.57/05/DEFENDANT IN O.S.481/04: ------------------------------------------------------------ KHALID, S/O.ABOOBACKER, AGED 42 YEARS, KARIMBANAPUNATHIL HOUSE, VADAKARA AMSOM DESOM, VADAKARA TALUK. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY SRI.ZUBAIR PULIKKOOL RESPONDENT/DECREE HOLDER/PETITIONER IN E.P.57/05/PLAINTIFF IN O.S.481/04: ----------------------------------------------------------------------------------- VINAYAKUMAR, S/O.BALAN,AGED 54 YEARS, KARANDAYIL HOUSE, KARIVANNOOR VILLAGE, ETTUMANA DESOM, TRISSUR TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C No.238 of 2009 ------------------------------------------------ Dated this the 2nd day of January, 2009 JUDGMENT The judgment debtor in E.P.57/05 on the file of the Sub Court, Vadakara in execution of the decree in O.S.481/04 on the file of the Sub Court, Thrissur is the petitioner and the decree holder is the respondent. The prayer in this Writ Petition is to set aside Ext.P5 order directing the share of the petitioner being sold and to adjourn the sale till Ext.P3 petition filed by him under Order 9 Rule 13 CPC to set aside the ex parte decree in the suit is disposed of by the Sub Court, Thrissur; to direct the Sub Judge, Thrissur to serve notice on Ext.P3 petition to Advocate Sri.Subin Raj who is appearing for the respondent in the said suit on the execution side before Sub Court, Vadakara and to direct W. P. C No.238 of 2009 -2- the Sub Judge, Thrissur to dispose of Ext.P3 petition as expeditiously as possible within a time frame. 2. The suit O.S.481/04 was decreed ex parte by Sub Court, Thrissur on 21/02/05. Ext.P3 petition to set aside the ex parte decree was filed by the petitioner on 18/02/08 after almost three years. Service of notice to the respondent/plaintiff is still not effected on Ext.P3. It is seen that the petitioner moved E.A.37/08 under Order 21 Rule 69 of the CPC for adjournment of sale on the ground that petition to set aside ex parte decree is pending. The said petition was allowed by the execution court on payment of cost of Rs.2,000/- as per Ext.P4 order dt.21/02/08 and the sale was adjourned to 03/03/08. As late as on 17/11/08 vide Ext.P5 order the execution court observing that there is no payment and W. P. C No.238 of 2009 -3- no order setting aside ex parte decree is produced ordered sale of 14/140 shares of the petitioner/judgment debtor in the property jointly owned by him with others and ordered sale being conducted on 05/01/09 fixing upset price at Rs.8 lakhs. The amount for which the decree is being executed is almost Rs.9 lakhs and the petitioner has not paid any amount at all from out of the said amount. There is no reason for this Court to interfere in the above circumstances and to stay the execution or to direct notice on Ext.P3 petition pending before Sub Court, Thrissur being served on the counsel for the decree holder appearing on the execution side before Sub Court, Vadakara or to direct the Sub Judge, Thrissur to dispose of Ext.P3 petition when notice in the said petition is not served on the respondent. This Writ Petition is ill-conceived and is aimed W. P. C No.238 of 2009 -4- only to avoid the decree debt being paid and is dismissed in limine. K.P.BALACHANDRAN, JUDGE kns/-