IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 WP(C).No. 28194 of 2009(O) -------------------------- AGAINST THE ORDERS IN EA 37/09, 38/09 & 39/09 IN E.A.13/05 IN E.P.10/03 of DISTRICT COURT, THRISSUR .................... PETITIONERS: --------------- 1. SRI.K.J.JOHN SINGH, AGED 53 YEARS, SON OF LATE SRI.KARAVATTE UPPAZHAKKAD JOHN, CHEPPILAKKOD DESOM, ENKAKKAD VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. 2. SRI.K.J.BABY JOHN, AGED 50 YEARS, SRI.KARAVATTE UPPAZHAKKAD JOHN, CHEPPILAKKOD DESOM ENKAKKAD VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.ANIL S.RAJ RESPONDENT: --------------- M/S.INDUSTRIAL CREDIT & DEVELOPMNET SYNDICATE (I.C.D.S.), SYNDICATE HOUSE, UDUPPI TALUK, UDUPPI DISTRICT, MANIPPAL, KARNATAKA-576 119. ADV. SRI.S.R.DAYANANDA PRABHU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 28194/09) PETITIONERS' EXTS.: EXT.P1: TRUE COPY OF THE LIST OF PROPERTIES ATTACHED DATED 11.7.2003 ALONG WITH PETITION. EXT.P2: TRUE COPY OF THE E.A.38/09 IN E.P.13/05 IN E.P.10/03 DATED O.7.2006. EXT.P3: TRUE COPY OF THE E.A.37/09 IN E.A.13/05 IN E.P.10/03 DATED 9.7.2006. EXT.P4: TRUE COPY OF THE E.A.39/09 IN E.A.13/05 IN E.P.10/03 DATED 9.7.2006. EXT.P5: TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXHIBIT P2 APPLICATION DATED 10.8.2009. EXT.P6: TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXHIBIT PP3 APPLICATION DATED 10.8.2009. EXT.P7: TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXHIBIT P4 APPLICATION DATED 10.8.2009. EXT.P8: TRUE COPY OF THE ORDER DATED 21.8.2009 IN E.A.37/09 IN E.A.13/05 IN E.P.10/03. EXT.P9: TRUE COPY OF THE ORDER DATED 21.8.09 DISMISSING E.A.38/09 IN E.A.13/05 IN E.P.NO.10/03. EXT.P10: TRUE COPY OF THE ORDER DATED 21.8.2009 DISMISSING E.A.39/09 IN E.A.13/05 IN E.P.10/03. RESPONDENT'S EXTS.: EXT.R1(a): COPY OF SKETCH ISSUED BY THE VILLAGE OFFIER, ENGAKKAD. EXT.R1(b): COPY OF RECEIPT DATED 19.3.2007 FOR Rs.165/- ISSUED BY THE VILLAGE OFFICER, ENGAKKAD. EXT.R1(c): TRUE COPY OF SALE DEED NO.2100/2007 DATED 27.4.2007 OF SUB REGISTRY OFFICE, VADAKKANCHERY. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 28194 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 23rd November, 2009 JUDGMENT The Writ Petition is filed seeking mainly the following reliefs: 1. To issue a writ, order or direction in the nature of certiorari or such other appropriate writ, order or direction quashing exhibits P8 to P10 as bad in law, unjust and unreasonable. 2. To issue a writ, order or direction in the nature of mandamus or such other appropriate writ, order or direction directing the court below to allow exhibits P2 to P4 as prayed for. 2. Petitioners are the judgment debtors in E.P.No.10 of 2003 on the file of the District Court, Thrissur. The above execution petition arises from the award passed in A.P.No.121 of 2000 in respect of which execution proceedings commenced before the Civil Court, Uduppi. The execution petition filed before that court was transmitted to the District Court, Thrissur since the petitioners reside within the jurisdiction of that court. Nine items of properties belonging to the petitioners were attached to proceed with for satisfaction of the decree debt. In the sale that followed after settlement of proclamation, its publication, and other formalities, the decree holder W.P.C.No.28194/09 - 2 - obtaining the leave of the court purchased the properties put in auction. When the decree holder later applied for delivery of the property, petitioners moved three applications, P2, P3 and P4. P2 was filed to set aside the order declaring them ex parte earlier in E.A.No.13 of 2005, the application moved by the decree holder for attachment of nine items of immovable properties which had been later put to sale. P3 was filed to condone the delay of 1201 days in filing the application to set aside the order passed in the execution application referred to earlier. P4 petition was filed for appointment of an advocate commission to determine and demarcate the property sold in execution from the larger extent of the property which is stated to be about 9 acres belonging to the judgment debtors. All these three petitions, after consideration, were dismissed by the learned District Judge vide P8, P9 and P10 orders. Propriety and correctness of those orders are challenged in the writ petition by the petitioners/judgment debtors invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Learned counsel for the petitioners conceding that P2 and P3 applications would not lie under the provisions quoted thereunder, canvassed an argument that such W.P.C.No.28194/09 - 3 - petitions could be construed as having been filed under Section 47 of the Code of Civil Procedure. Judgment debtors have no challenge against the sale or the execution proceedings so far taken, but, only a grievance to the extent that the property sold has to be identified from the larger extent of the property, which, according to them, has about 9 acres, before delivery is given effect to. For such identification, P5 application requesting for appointment of an advocate commission, according to the counsel, deserve consideration and merit. I do not find any merit in the submissions made by the counsel. After confirmation of the sale and issue of the sale certificate when the respondent/decree holder applied for delivery of the property, the judgment debtors have filed these applications, P2, P3 and P4, for the reliefs mentioned aforesaid. P2 and P3 applications are filed under Order 21 Rule 106 of the Code of Civil Procedure, to set aside the ex parte order passed in the application leading to the attachment of the properties before proclamation and sale and for condoning the delay of nearly four years in moving such an application. After sale, no such applications can be entertained in respect of the orders passed leading over the attachment prior to proclamation and publication for sale. Sale W.P.C.No.28194/09 - 4 - conducted in the proceedings, it appears, has never been challenged by the petitioners on any ground whatsoever. P5 application for appointment of an advocate commission to identify the property sought to be proceeded on the basis of P2 and P3 applications presented is unworthy of any merit. Dismissal of the above applications by the learned District Judge is unassailable. There is no merit in the writ petition, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE