IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 OP(C).No. 3817 of 2011(O) ---------------------------------- TSCOS.1117/2004 of PRL.SUB COURT,IRINJALAKUDA ........................................... PETITIONER(S): ------------------------ BEENA, AGED 44 YEARS, W/O. MANGALAM VEETTIL SEBASTIAN, KALLETTUMKARA DESOM, ALOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENT(S): ------------------------- VYAPARAVIJAYAN HIRE PURCHASE(P) LTD., ADAM BAZAR, EASTERN BAZAR, THRISSUR-680 001. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DCS OP(C) NO. 3817 OF 2011 (O) APPENDIX PETITIONER(S) EXHIBITS :- EXT.P1 : COPY OF EXECUTION PETITION FILED BEFORE THE SUB COURT, IRINJALAKUDA, DTD.16.12.05. EXT.P2 : COPY OF E.A.NO.1419/09 FILED BEFORE THE SUB COURT,IRINJALAKUDA, DTD.7.10.2009. EXT.P3 : COPY OF COUNTER AFFIDAVIT FILED BY THE RESPONDENT, DTD.19.1.10. EXT.P4 : COPY OF ORDER IN EA NO.1419/09 IN EP NO.537/05 OF THE SUB COURT, IRINJALAKUDA, DTD.31.5.2010. RESPONDENTS' EXHIBITS :- NIL /TRUE COPY/ P.A. TO JUDGE DCS THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3817 of 2011 -------------------------------------- Dated this the 30th day of November, 2011. JUDGMENT 1st judgment debtor in E.P.No.537 of 2005 in T.S.C.O.S.1177 of 2004 of the court of learned Principal Sub Judge, Irinjalakuda is the petitioner, challenging Ext.P4, order dismissing E.A.No.1419 of 2009 for default on 31.05.2010. E.A.No.1419 of 2009 is an application filed under Rule 90 of Order XXI of the Code of Civil Procedure (for short, “the Code”) to set aside the sale held on 08.09.2009. E.A.No.1419 of 2009 was dismissed for default on 31.05.2010. As per Rule 106(1) of Order XXI of the Code time available to the petitioner to seek to set aside the dismissal is 30 days from the date of the order. No such application was preferred before the executing court. Instead, this Original Petition is filed on 22.11.2011, much after the time prescribed under Rule 106(1) of Order XXI of the Code has run out. In such situation, this Court should not interfere under Article 227 of the Constitution and grant a relief which is prohibited by the Code which would only mean circumventing provisions of the Code. In that view of the matter this Original Petition cannot be sustained. Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks