IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 WP(C).No.1412 of 2009 (R) -------------------------------- OS.33/2003 of SUB COURT, PALA .................... PETITIONER: --------------- NINAN S/O. DANIEL, AGED 65, VAZHILANIKKAL HOUSE, MELUKLAVU P.O., MEENACHIL TALUK, MELUKAVU VILLAGE. BY ADV. SRI.BECHU KURIAN THOMAS SRI.PAUL JACOB (P) SMT.NISHA JOHN RESPONDENTS: ------------------ 1. STATE BANK OF TRAVANCORE, THAIKKATTUKARA BRANCH, THAIKATTUKARA, ALUVA, REP. BY ITS MANAGER. 2. SRI. P. J. FREDDY, S/O. P.A. JAMES , AGED 37 YEARS, PADAMADAN HOUSE,THAIKKATTUKARA P.O., MANAGING PARTNER, M/S COCHIN GOLD WORKS, THAIKKATTUKARA P.O., ALUVA -6. 3. SMT. SAJI FREEDY, W/O. FREDDY, AGED 32 YEARS, PADAMADAN HOUSE, AMBATTUKAVU, THAIKKATTUKARA P.O., PARTNER, M/S COCHIN GOLD WORKS, THAIKKATTUKARA P.O., ALUVA-6. S.C., S.B.T. Sri.K.S.Dilip THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.1412 of 2009 ------------------------------------------------ Dated this the 14th day of January, 2009 JUDGMENT Heard the counsel for the petitioner as also the Standing Counsel for the first respondent/Bank. 2. It is submitted by the counsel for the petitioner that the bank is proceeding against the property of the petitioner who is the third judgment debtor in the case whereas they have released the gold pledged with them by judgment debtors 1 and 2 who are husband and wife and have also released the mortgaged property belonging to the second judgment debtor without the knowledge and consent of the petitioner/third judgment debtor who was a W. P. C. No.1412 of 2009 -2- surety to the loan transaction whereunder loan was being availed of for the purpose of business conducted by judgment debtors 1 and 2; that the decree holder having released the mortgaged property as also the gold pledged with them by judgment debtors 1 and 2, are not entitled in law to proceed against the property hypothecated by the third judgment debtor who is only a surety; that in execution of the decree sale of the property of the petitioner which is having an extent of 83 cents with his residential building therein is put up for sale to tomorrow (15/01/09); that he has filed I.A.1511/08 to set aside the ex parte decree passed W. P. C. No.1412 of 2009 -3- against him and I.A.1512/08 to condone the delay in filing the said application to set aside the ex parte decree and that therefore, the sale posted to tomorrow be adjourned granting breathing time to the petitioner directing also the Sub Court, Pala to dispose of the said I.A.s before the sale of the property is had. 3. The prayer is vehemently opposed by the counsel for the first respondent / decree holder/Bank. According to the petitioner's counsel there was pledge of gold jewellery, bullion etc. and equitable mortgage of 8.069 cents of property belonging to the second judgment debtor who is the wife of the first judgment W. P. C. No.1412 of 2009 -4- debtor and the petitioner was being persuaded to stand as surety promising that he may not have to take up any responsibility in discharging the debt and that the debt would be discharged with the gold jewellery pledged and the property belonging to the second judgment debtor mortgaged to the bank. Counsel for the first respondent/Bank is unable to submit with the instructions received by him from the bank, as to whether gold jewellery pledged has been released to judgment debtors 1 and 2 and as to whether 8.069 cents equitably mortgaged to the decree holder/Bank by the second judgment debtor has been released before discharge of the W. P. C. No.1412 of 2009 -5- debt involved in the suit and if so under what circumstances and whether it was with notice to the petitioner/third judgment debtor. In the circumstances, I am of the view that the property belonging to the petitioner put up for sale to tomorrow shall not be sold in auction tomorrow but that the sale has to be adjourned without a fresh proclamation as agreed to by counsel for the petitioner to 17/02/09 directing the Sub Judge that in the meanwhile, he shall dispose of I.A.1511 and I.A.1512 of 2008. 4. In the result, I order that the sale in execution of the decree as per E.P.81/07 on the file of the Sub Court, W. P. C. No.1412 of 2009 -6- Pala shall stand adjourned to 17/02/09 and direct the Sub Judge, Pala to dispose of I.As.1511 and 1512 of 2008 positively within three weeks from today. The petitioner is directed to produce a copy of this judgment before the Sub Judge, Pala forthwith so as to enable the Sub Judge to abide by the directions herein. 5. This Writ Petition is disposed of with the above directions. Issue copy of this judgment to the counsel for the petitioner urgently. K.P.BALACHANDRAN, JUDGE kns/-