IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 WP(C).No. 20063 of 2007(L) -------------------------- AGAINST THE ORDER IN EP 193/2005 IN OS.290/2001 of SUB COURT, MAVELIKKARA OA.166/2003 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONER: ------------ STATE BANK OF TRAVANCORE, MAVELIKARA MAIN BRANCH, MAVELIKARA, REPRESENTED BY ITS CHIEF MANAGER. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW RESPONDENTS: ----------------- 1. SMT. LEELAMMA THOMAS, MALAYIL KIZHAKKATHIL ANIL VILLA, KUNNAM, THAZHAKKARA, MAVELIKARA REPRESENTED BY POWER OF ATTORNEY HOLDER, G.THOMAS, MALAYIL KIZHAKKATHIL ANIL VILLA, KUNNAM, THAZHAKKARA, MAVELIKARA. 2. SRI.OOMMEN VARGHESE, S/O. VARGHESE, NADAVALLIL HOUSE, VAZHUPADY MURI,THAZHAKKARA VILLAGE, PYNUMMOOD, MAVELIKARA. 3. SMT. ELIZABETH OMMEN, W/O. OOMMEN VARGHESE, NADAVALLIL, VAZHUPADY MURI, THAZHAKKARA VILLAGE, MAVELIKARA. 4. THE RECOVERY OFFICER, DEBTS RECOVERY TRIBUNAL, ERNAKULAM. BY ADV. SRI.S.KRISHNAMOORTHY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT. P1 PHOTOCOPY OF THE FINAL ORDER DATED 11.9.03 IN O.A.166/03 OF THE DEBTS RECOVERY TRIBUNAL, ERNAKULAM. EXT.P2 PHOTOCOPY OF THE CLAIM PETITION I.A.722/02 FILED BY THE PETITIONER. EXT.P3 PHOTOCOPY OF THE EXECUTION PETITION AS E.P.180/04 FILED BY THE 1ST RESPONDENT BEFORE THE SUB COURT, MAVELIKARA. EXT.P4 PHOTOCOPY OF THE PROCLAMATION SCHEDULE FILED ALONG WITH E.P.180/04 BY THE 6TH RESPONDENT BEFORE THE SUB COURT, MAVELIKARA. EXT.P5 PHOTOCOPY OF THE OBJECTION FILED BY THE PETITIONER IN E.P.180/04 BEFORE THE SUB COURT, MAVELIKARA. EXT.P6 PHOTOCOPY OF THE STAY PETITION FILED ALONG WITH EXT.P5 OBJECTION BY THE PETITIONER. EXT.P7 PHOTOCOPY OF THE E.A.NO.260/07 FILED BY THE PETITIONER BEFORE THE SUB COURT, MAVELIKARA. [ True copy ] P.A. to Judge. M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 20063 OF 2007 = = = = = = = = = = = = = = = Dated this the 19th day of March, 2008. J U D G M E N T This writ petition is preferred to direct the Subordinate Judge, Mavelikkara to defer the execution proceedings in E.P.193/05 in O.S.290/01 till the proceedings in DRC 1107 in O.A.166/03 is completed, direct the Sub Judge, Mavelikkara to consider and pass appropriate orders in E.A.260/07 etc. The writ petitioner herein is claiming mortgage right over the property which is proposed to be proceeded against, in the execution proceedings. It is submitted that the Bank moved a case on the strength of a mortgage, obtained a decree and I am informed that in execution of the same the property under mortgage has been sold by the Debt Recovery Tribunal wherein the matter was pending. The decree holder in the present civil case has obtained a simple money decree and the question posed is whether a person with a charge is entitled to get preferential right over a person who has only W.P.C 20063 OF 2007 -:2:- obtained a simple money decree. There is no difficulty to answer that question and certainly a person who has got a charge over the property will be entitled to primary right over the same. To advance this contention the writ petitioner moved an application in the form of a claim application I.A.722/02 which has been dismissed for default. A petition to restore the same has been filed. In view of the various subsequent developments in the matter an order has to be passed by the Court below. Therefore I allow the application for review directing the Court below to restore the claim application taking into consideration the subsequent developments and pass appropriate orders after hearing all concerned. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-