IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 WP(C).No. 21825 of 2007(W) -------------------------- PETITIONER: ------------ A.N. GOPINATHAN, S/O. SEKHARAN, RESIDING AT POOKKOTH HOUSE, P.O. NADUVATHUR, KEEZHARIYUR AMSOM, KOYILANDY TALUK, KOZHIKODE DIST. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENTS: ------------- 1. K. RAJAGOPALAN NAIR, S/O. KUNJIKKANNAN NAIR, KUTTIYIL HOUSE, VIYYUR AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 2. M. RAJIV KUMAR, S/O.BALAKRISHNAN NAIR, ARCHANA APARTMENTS, ERNAJIPALAM, KOZHIKODE DIST. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY SRI.R.K.MURALEEDHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.21825/2007 APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF I.A. 11/2007 IN O.S. NO.304/2003 OF THE HON'BLE SUB COURT, KOZHIKODE. EXT. P2: COPY OF THE ORDER PASSED BY THE SUB COURT, KOZHIKODE IN I.A. NO.11/2007 IN O.S. NO.304/2003. EXT. P3: COPY OF THE STATEMENT FILED BY THE COUNSELFOR THE JUDGMENT DEBTOR BEFORE THE EXECUTING COURT IN E.P. NO.80/2005 IN O.S. NO.304/2003. RESPONDENT'S EXHIBITS: EXT. R1(A): COPY OF THE ORDER IN THE TRANSFER PETITION O.P. 3/2003 ON THE FILE OF DISTRICT JUDGE, KOZHIKODE FOR TRANSFER OF THE SUIT FROM THE FILE OF SUB COURT KOYILANDY TO SUB COURT, KOZHIKODE. EXT. R1(B): COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION TO RECALL THE EX-PARTE ORDER ON 15.3.2006. EXT. R1(C): COPY OF THE COUNTER STATEMENT FILED BY ME OPPOSING R1(B). EXT. R1(D): COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION I.A. 359/2006 TO SET ASIDE THE SALE. EXT. R1(E): COPY OF THE COUNTER STATEMENT OPPOSING R1(D). EXT. R1(F): COPY OF THE AFFIDAVIT IN SUPPORT OF E.A. 389/2006. EXT. R1(G): COPY OF THE COUNTER STATEMENT OPPOSING R1(F). EXT. R1(H): COPY OF THE PETITION FOR LEAVE TO AMEND FOLLOWING JOINDER OF THE AUCTION PURCHASER. EXT. R1(I): COPY OF THE COUNTER STATEMENT OPPOSING R1(H). EXT. R1(J): COPY OF THE CHIEF AFFIDAVIT. EXT. R1(K): COPY OF THE AFFIDAVIT IN SUPPORT OF THE CHEQUE PETITION. EXT. R1(L): COPY OF THE PETITION FOR CHEQUE. EXT. R1(M): COPY OF THE COUNTER STATEMENT FILED BY THE WRIT PETITIONER TO THE CHEQUE PETITION. W.P.(C) NO.21825/2007 EXT. R1(N): COPY OF THE MEMORANDUM OF REVIEW. EXT. R2(A): COPY OF THE ORDER IN EA 358/06 IN EP 80/2005 IN OS 304 OF 2003 DATED 17-11-2006. EXT. R2(B): COPY OF THE PETITION ALONG WITH THE ORDER IN EA 359/06. EXT. R2(C): COPY OF THE PETITION IN EA 120/07 IN EA 359/06 AND THE ORDER PASSED IN THE PETITION. EXT. R2(D): COPY OF THE EA 408/06 AND THE ORDER PASSED. /TRUE COPY/ P.A. TO JUDGE JP M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 21825 OF 2007 = = = = = = = = = = = = = = = Dated this the 10th day of March, 2008. J U D G M E N T This writ petition is preferred to pass an order holding that the entire proceedings of the executing Court in executing the exparte decree in O.S.304/03 of the Sub Court, Kozhikode is null and void and for re-conveyance of the property that has been given to the auction purchaser. The briefs facts are that an exparte decree has been passed against the present writ petitioner. In execution of the decree the property was put into sale and the 2nd respondent/the auction purchaser purchased the property, sale was confirmed, sale certificate issued and delivery effected. At this stage it is submitted that the exparte decree has been set aside and therefore there is no decree to be executed and therefore the whole sale is void and therefore the writ petitioner is entitled to get back the property. I am also informed that a review application is preferred against the order setting aside the exparte decree. W.P.C 21825 OF 2007 -:2:- 2. The learned counsel appearing for the auction purchaser as well as the decree holder has brought my attention to the decision of the Apex Court reported in Chinnammal v. P. Arumughan (AIR 1990 SC 1828) and specifically to paragraph 10 of the said judgment which holds that when an auction purchaser is a bonafide purchaser he is not liable to be thrown out. It is also stated therein that there are certain circumstances where an exparte decree is set aside the property may have to be restored. These are all matters which has to be considered by the Court when an application in that behalf is filed before the Court. I make it clear that I am not expressing anything on merit in this case but permit the writ petitioner herein if he choses to file a proper application before the execution Court and I also direct the Court where the application to review the order setting aside the exparte decree is pending to consider it and dispose it of at the earliest. I am informed that the said matter is pending before the Sub Court, Kozhikode as I.A.483/07. In the result the writ petition is disposed of as follows: W.P.C 21825 OF 2007 -:3:- (1) If an application is filed by the writ petitioner herein with respect to the redelivery of the property the executing Court is directed to consider and pass appropriate orders after hearing all concerned within 31.5.2008. (2) I.A.483/07 is to be disposed of by the Subordinate Judge, Kozhikode within a time frame of four weeks from today, at any rate before the Court closes for summer holidays. (3) There is a further direction to the 2nd respondent not to alienate the property till a final decision is taken in the matter, i.e., the outer limit being 31.5.2008. (4) Needless to say if the exparte decree is refused to be set aside by the Court below by allowing the review application it may not be necessary for the executing Court to consider the application for restitution itself. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-