IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 OP(C).No. 2392 of 2011(O) ------------------------------------- [OS.NO.540/1996 OF II ADDITIONAL SUB COURT,THRISSUR] .................... PETITIONERS: --------------------- 1. SARVADAMANAN, S/O.CHETTIPARAMBILGOPALAN, KOLAZHI VILLAGE, POST KOLAZHI, THRISSUR DISTRICT. 2. GOPALAKRISHNAN, S/O.THATTANPARAMBIL RAVUNNI, KOLAZHI, THRISSUR DISTRICT. BY ADVS. SRI.SAJU.S.A, SMT.P.A.SHEEJA. RESPONDENTS: ------------------------ 1. MS.P.J.DIVYA DEVI, D/O.LATE P.N.PARAMESWARAN, ALAPAKKOM, VALSARAVAKKOM, CHENNAI - 87. 2. MRS.R.JAYALAKSHMY, W/O.LATE P.N.PARAMESWARAN, ALAPAKKOM, VALSARAVAKKOM, CHENNAI - 87. 3. MS.P.J.DEEPA DEVI, D/O.LATE P.N.PARAMESWARAN, ALAPAKKOM, VALSARAVAKKOM, CHENNAI - 87. 4. PREETHA, W/O.ANANTHAKRISHNAN, 'ANANDA VIHAR', PATTURAYIKKAL, THRISSUR - 20. 5. DEVI ACADEMY, KOLAZHI DESOM, KOLAZHI VILLAGE, THRISSUR - 680 010. 6. R.VASUDEVAN, ADDITIONAL TRUSTEE, DEVI ACADEMY, NO.1 ALAPPAKKAM, CHENNAI - 87. R1 TO R3, R5 & R6 BY ADV. SRI.M.R.ARUN KUMAR. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.2392/2011-O: APPENDIX PETITIONERS' EXHIBITS:- EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 540/1996 ON THE FILE OF COURT OF THE SUBORDINATE JUDGE OF THRISSUR DTD. 05/06/1996. EXT.P.2: COPY OF THE SALE CERTIFICATE IN O.S. NO. 540/1996, SUB COURT, THRISSUR DTD. 25/09/2002. EXT.P.3: COPY OF THE DELIVERY REPORT DTD. 21/03/2003. EXT.P.4: COPY OF THE I.A. NO. 1643/2009 IN O.S. NO. 540/1996 ON THE FILE OF SUB COURT, THRISSUR DTD. 05/03/2009. EXT.P.5: COPY OF THE I.A. NO. 1644/2009 IN O.S. NO. 540/1996 ON THE FILE OF SUB COURT, THRISSUR DTD. 05/03/2009. EXT.P.6: COPY OF THE ORDER OF THE COURT OF THE ADDITIONAL SUB JUDGE, THRISSUR IN I.A. NO. 1644/2009 IN O.S. NO. 540/1996 DTD. 31/08/2010. EXT.P.7: COPY OF THE I.A. NO. 8689/2010 IN I.A. NO. 1644/2009 IN O.S. NO. 540/1996, SUB COURT, THRISSUR DTD 24/09/2010. EXT.P.8: COPY OF THE APPLICATION FILED BY THE PLAINTIFF IN O.S. NO. 540/1996, SUB COURT, THRISSUR DTD. 27/09/2010. EXT.P.9: COPY OF THE APPLICATION FILED BY RESPONDENTS 1 TO 3 HEREIN FOR REVIEWING EXT.P.6 ORDER DTD 25/09/2010. RESPONDENTS' EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2392 of 2011 -------------------------------------- Dated this the 8th day of November, 2011. JUDGMENT Petitioners are auction purchasers in O.S.No.540 of 1996 of the court of learned Additional Sub Judge-II, Thrissur. That auction purchase was pursuant to an exparte decree for recovery of money passed in the year 1998. The 4th respondent filed the suit and obtained the decree against respondents 2, 5 and 6. It is pursuant to the said exparte decree that the property was sold and purchased by petitioners in court auction. Sale certificate was issued to the petitioners in the year, 2002 and they got delivery of the property. It is the further case of petitioners that they transferred the property to certain others thereafter. While so, respondents 2, 5 and 6 filed I.A.No.1644 of 2009 to set aside the exparte decree and I.A.No.1643 of 2009 to condone the delay of 3715 days. The exparte decree was set aside by the learned Additional Sub Judge by the impugned order (Ext.P6). Petitioners challenge that order. 2. Learned counsel submitted that though the application to set aside the exparte decree was hopelessly barred by limitation and respondents 2, 5 and 6 had filed I.A.No.1643 of 2009 to condone the delay of 3715 days, learned Additional Sub Judge allowed I.A.No.1644 of 2009 and set aside the exparte decree without even mentioning about the delay of 3715 days. Learned counsel submitted that even much before filing of I.A.Nos.1643 and 1644 of 2009, OP(C)No.2392/2011 2 petitioners had purchased the property in court auction, the sale certificate was issued in their favour in the year 2002 and subsequent to that, they conveyed the property by assignment to others. Hence, it is contended that the order setting aside the exparte decree cannot and will not affect the court auction sale in favour of petitioners. Reliance is placed on the decisions in Chinnamal and others v. P.Arumugham and another (AIR 1990 SC 1828) and Padanathil Ruqmini Amma v. P.K.Abdulla ((1996) 7 SCC 668). 3. Learned counsel for respondents 1 to 3, 5 and 6 contend that petitioners have no right to challenge the impugned order since they are not parties to the suit and not required to be parties as well. 4. Admittedly petitioners are not parties to the suit. Issue regarding setting aside the decree is a matter between the plaintiff and defendants in the suit. Since petitioners are not parties to the suit, I am not inclined to entertain this Original Petition at the instance of petitioners in challenge of the order setting aside the exparte decree. But, whatever contention petitioners have, to defend the title and possession they have acquired by court sale in their favour and, the right that their assignees have obtained under them is a matter which they could urge and is to be adjudicated as provided under law at the appropriate stage as and when the situation warrants that. OP(C)No.2392/2011 3 Without prejudice to that right of petitioners and their assignors, this Original Petition is closed. THOMAS P.JOSEPH, Judge. cks