IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 WP(C).No. 34772 of 2007(M) --------------------------------------- AGAINST THE ORDER DATED 22/10/2007 IN IA.815/07 IN OS.200/2007 OF ADDL.SUB COURT, ALAPPUZHA .................... PETITIONER: ------------------- RENY, W/O.AQUINS MATHEW, KOLLAMPARAMBU, CHANGANACHERRY P.O., KOTTAYAM. BY ADV. SRI.P.C.HARIDAS. RESPONDENT: ---------------------- THE FEDERAL BANK LTD., REGIONAL OFFICE, WEST OF MEDICAL COLLEGE JN, ALAPPUZHA REPRESENTED BY ITS REGIONAL OFFICER. BY ADV. SRI.MOHAN JACOB GEORGE, SMT.P.V.PARVATHY, SMT.REENA THOMAS, SRI.RAM MOHAN.L. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.34772/2007-M: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE PLAINT IN O.S. 200/07. EXT.P.2: COPY OF THE PARTITION DEED NO. 1074/64 OF SRO, PULIMKUNNU. EXT.P.3: COPY OF THE RELEASE DEED NO. 3797/96 OF SRO, PULIMKUNNU. EXT.P.4: COPY OF THE I.A. 815/07 IN O.S. 200/07. EXT.P.5: COPY OF THE OBJECTION TO EXT.P.4. EXT.P.6: COPY OF THE ORDER DTD. 22/10/07 IN I.A. 815/07. EXT.P.7: COPY OF THE CERTIFICATE OF BAPTISM DTD. 22/11/2007 ISSUED BY THE VICAR, ST. THERESA'S CHURCH, KAVALAM. EXT.P.8: COPY OF THE CERTIFICATE OF BAPTISM DTD. 11/12/2007 ISSUED BY THE VICAR, ST. MARY'S METROPOLITAN CHURCH, CHANGANACHERRY. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 34772 OF 2007 = = = = = = = = = = = = = = = Dated this the 15th day of January, 2008. J U D G M E N T This writ petition is preferred against the order of the Addl. Subordinate Judge, Alappuzha in I.A.815/07 in O.S.200/07. The said application was one for a stay of all proceedings initiated by the respondent, Bank for the sale of the property till the final disposal of the suit or to allow the said proceedings of the Bank to be kept in abeyance till the disposal of the suit. 2. The Court below passed an order dismissing the application on the ground that there is bar. I feel in a case of this nature at this stage complicated questions need not be gone into because on facts itself the matter can be decided. It can be seen that the property belong to one Chacko and the present writ petitioner claims to be the daughter of the predeceased daughter. According to her, right of her mother had devolved upon her and the 10th W.P.C 34772 OF 2007 -:2:- defendant and therefore they are entitled to 1/10th shares in the property. The facts would also reveal that defendants 1 to 5 and 7 to 9 in the suit and the mother executed a relinquishment deed in favour of the 6th defendant who in turn transferred that right in favour of the 11th defendant. The 11th defendant secured a loan from the Bank by giving the property as a security for the loan. It is also seen D4, D6 and D11 had availed a loan from the Bank. Now, the contention of the writ petitioner is that since she is having 1/10th share in the property the Bank shall not be permitted to proceed with the sale of the property for the reason it will affect her right. In support of the said contention that the injunction can be granted in such cases the learned counsel had cited two decisions, Arsa Kumar v. Nallammal [II (2005) Bank Cases 127] and Mohan Lal v. Dwarka Prasad (AIR 2007 Rajasthan 129). In those cases the Court found that till right of parties determined by Civil Court and Civil Court alone could decide and determine rights of parties in respect of their respective claims, the Bank cannot bring properties for sale by invoking bar under Section 34 or Section 13 of the Act. W.P.C 34772 OF 2007 -:3:- 3. In the Rajasthan case also the learned Judge held that when there is a Hindu undivided family property and the share cannot be determined an injunction can be granted or sale can be stopped. 4. There cannot be any difficulty in accepting those propositions but what the Court has to find now is whether it is necessary in the present facts and circumstance to have a stay. Even according to the plaintiff in the suit she along with 10th defendant is only having 1/10th share in the property. Suppose she succeeds in the partition suit and is entitled to 1/10th share in the property whatever sale is conducted by the Bank the purchaser will not get absolute right and he may have to give 1/10th share to the plaintiff. The major share namely 9/10 share is pledged to the Bank by competent persons. Therefore no prejudice will be caused to the present plaintiff if the sale is allowed to be proceeded but it has to be made clear who ever purchases the property will be bound by the decree of the civil Court and the plaintiff will be entitled to get 1/10th share from the person with whom the property is outstanding at the time of the decree if the civil Court gives such a decree. When large amount is W.P.C 34772 OF 2007 -:4:- borrowed and it is not repaid back it is incumbent upon the Court to see that unnecessary forestalling of realisation of the amount is not correct and therefore when the plaintiff is not suffering any loss, there is no need further to stay any further proceedings. I am not going into other merits or demerits of maintainability of suit or otherwise which the trial court can consider and decide. But so far as the suit for partition is concerned certainly it will be maintainable and the final outcome of the suit will have binding on all the parties including the 12th defendant who is the Bank and the purchaser who gets it under the cover of the Bank. 5. It is fair that to avoid further controversy the present writ petitioner may implead the purchaser whose address can be furnished by the 12th defendant, Bank. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-