IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 WP(C).No. 5428 of 2009(O) ------------------------- AGAINST THE ORDER IN EP 40/2005 IN OS.40/1997 of PRINCIPAL SUB COURT, MANJERI .................... PETITIONER(S): --------------- YOOSUF, S/O.ABDU RAWTHAR, PULIKKAPARAYIL, ,MANNUR AMSOM, PALAKKAD. BY ADV. SRI.SANTHEEP ANKARATH SMT.N.N.PRASEEDA RESPONDENT(S): --------------- 1. HAMSA, S/O.PULATH MOHAMMED, KALIKKAVU AMSOM, THRIKKUNNASSERI DESOM, NILAMBUR TALUK. 2. PULATH ABOOBACKER S/O.MOHAMMED, REP. BY POWER OF ATTORNEY HOLDER PULATH HAMSA, KALIKKAVU AMSOM, THRIKKUNATHUSSERI DESOM, NILAMBUR TALUK. ADV. SRI.A.BALAGOPALAN FOR R1 & R2 SMT.T.LAKSHMI FOR R1 & R2 SRI.K.SANEESH KUMAR FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------- W.P.(C).No.5428 of 2009 -------------------------------------- Dated this the 23rd day of March, 2009 JUDGMENT O.S.No.40 of 1997, on the file of the Sub Court, Manjeri, was filed by the respondents against the petitioner for realisation of money. The suit was decreed ex-parte on 5.1.2004. The petitioner filed Ext.P5 application (IA No.1413 of 2005) to set aside the ex-parte decree. There was delay in filing the application. Ext.P5 application (I.A.No.1412 of 2005) was filed to condone the delay of 575 days in filing the application to set aside the ex-parte decree. Those applications were dismissed for default. The petitioner has filed Exts.P7 and P8 applications (I.No.80 of 2009 and I.A.No.79 of 2009) to restore the applications for setting aside the ex-parte decree and for condonation of delay. There is a delay of 750 days in filing the application for restoration. Those applications are pending. 2. Meanwhile, the Execution Petition was proceeded with. The property belonging to the petitioner was sold in court auction WPC No.5428/2009 2 on 18.12.2008. It is stated that the property was purchased by a close relative of the decree holder for a sum of Rs.7,01,000/-. The auction purchaser is not made a party to the Writ Petition. Later, today, an application is filed to implead him. It is not necessary to issue notice to him, as it would cause further delay in the disposal of the Writ Petition. 3. The petitioner has filed Ext.P15 application dated 1.1.2009 under Order XXI Rule 90 of the Code of Civil Procedure to set aside the sale. In the Writ Petition, it is stated thus: “It was informed that Ext.P15 also will be dismissed on 18.2.2009 and sale will be confirmed on that day.” Normally, when an application under Order XXI Rule 90 is filed, the executing court will not confirm the sale unless and until the application to set aside the sale is dismissed. The apprehension of the petitioner is not well founded. However, the Writ Petition was entertained to avoid any such contingency as apprehended by the petitioner. 4. The reliefs prayed for in the Writ Petition are the following: WPC No.5428/2009 3 (i) “issue a writ of mandamus or other appropriate writ, order or direction directing the Sub Court, Palakkad to stay all further proceedings in E.P.No.40/2005 on its file for executing the decree in O.S.No.40/97 on the file of Sub Court, Manjeri pending disposal of Exts.P7 and P8 applications. (ii) Issue a writ, order or direction calling for the records leading to Ext.P13 and set aside Ext.P13 and all proceedings in furtherance of Ext.P13. (iii) Issue such other orders as are deemed fit and proper in the circumstances of the case.” The prayer No.(i) is to stay all the proceedings in the Execution Petition till the disposal of Exts.P7 and P8 applications, namely, the application for restoration of the application to set aside the ex-parte decree and the application to condone the delay of 750 days in filing the application for restoration. That prayer cannot be granted. If execution is proceeded with and the ex-parte decree is set aside, the petitioner can work out his remedies under law to the extent possible. The sale is over and the application to set aside the sale is pending. Therefore, there is no meaning in granting relief No.(i). Relief No.(ii) is to set aside Ext.P13 order dated 20th October 2008 whereby the court WPC No.5428/2009 4 had fixed the upset price and ordered sale of the property. Since the sale is over, relief No.(ii) is unsustainable. 5. The only observation required to be made is that the executing court will consider the application filed by the petitioner under Order XXI Rule 90 and shall proceed with the question of confirmation only thereafter. The disposal of this Writ Petition will not stand in the way of the petitioner to move the trial court for expeditious hearing of the application for restoration of the application under Order IX Rule 13 and the application for condonation of delay of 750 days in filing the application for restoration. The Writ Petition is disposed of accordingly. K.T.SANKARAN, JUDGE csl