IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 OP(C).No. 2047 of 2011(O) ------------------------- AGAINST THE ORDER IN EA 629 OF 2006 IN EP.90/2004 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER: -------------------- M.MUHAMMED RAFI, AGED 39 YEARS, S/O.P.M.MUHAMMED HANEEFA, 9/71, COLLEGE ROAD, PARAKKUNNAM, PALAKKAD-1. BY ADV. SRI.T.ABY JACOB SMT.K.G.SAROJINI RESPONDENT(S): --------------- 1. THE MANAGER, STATE BANK OF INDIA, TOWN BRANCH, PALAKKAD. 2. MRS.ARUNA DEVI, AGED 56 YEARS, W/O.SUBRAMANIAN, VYSYA STREET, KOPPAM AMSOM, PALAKKAD-678001. 3. SAIRAM, S/O.ARUNA DEVI,AGED 33 YEARS, VYSYA STREET, KOPPAM AMSOM, PALAKKAD-678001. 4. SUNDAR, S/O.ARUNA DEVI,AGED 31 YEARS, VYSYA STREET, KOPPAM AMSOM, PALAKKAD-678001. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2047 of 2011(O) PETITIONER'S EXTS: EXT.P1: COPY OF THE PANAYA KARAR DTD.27.1.2003 EXT.P2: COPY OF CLAIM PETITION IN EA 629 OF 2006 IN EP 90 OF 2004 DTD.19.10.2006 EXT.P3: COPY OF ORDER OF DISMISSAL DTD.19.6.2010. RESPONDENTS EXTS : NIL /TRUE COPY/ P.A.TO JUDGE K.T.SANKARAN, J. ------------------------------------- O.P(C)No.2047 OF 2011 ------------------------------------- Dated this the 28th day of June, 2011 JUDGMENT The petitioner filed a claim petition under Rule 58 of Order XXI and Section 47 of the Code of Civil Procedure in E.P.No.90 of 2004 in O.S.No.30 of 2003 on the file of the Sub Court, Palakkad. The decree was obtained by the first respondent against respondents 2 to 4. The property which was sought to be sold in court auction belongs to the second respondent. According to the petitioner, he is having a right under the panayakarar executed between himself and the second respondent. Therefore, the petitioner contended in the claim petition that the property cannot be sold in auction. 2. The claim petition was posted on several dates. It is seen that on 3.4.2010 the court adjourned the case to 1.6.2010 as a last chance, as the petitioner was not ready on 3.4.2010. On 1.6.2010, there was no representation for the petitioner and the Executing Court dismissed the claim petition filed by the petitioner. 3. The prayer in this Original Petition is to set aside the order dated O.P(C)No.2047 OF 2011 2 1.6.2010 in E.A.No.629 of 2006 in E.P. No.90 of 2004. There is no dispute that the petitioner was not present before the court on 1.6.2010. Therefore, the Executing Court cannot be blamed for dismissing the application for default. The Original Petition lacks merits and it is accordingly, dismissed without prejudice to the right of the petitioner to seek other appropriate remedies. K.T.SANKARAN, JUDGE. cms