IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 OP(C).No. 2022 of 2011(O) ------------------------- [C.M.A.NO.02/2011 OF II ADDL.DISTRICT COURT,ERNAKULAM] .................... PETITIONER: ------------------- XAVIER, S/O.GIRVASIS, AGED 56 YEARS, CHILLIKKUDATHIL HOUSE, KATTITHARA ROAD, MARADU.P.O., ERNAKULAM DISTRICT. BY ADVS. SRI.P.J.JOSEPH PANIKKASSERY, SRI.P.J.THOMAS. RESPONDENTS: ------------------------ 1. MARADU SERVICE CO-OPERATIVE BANK, MARADU, ERNAKULAM, PIN-682 304. 2. MRS.VICTORIA, W/O.JACOB, AGED 47, PARAVANA HOUSE, ANAPARAMBU, MARADU-682 304. 3. OFFICIAL RECEIVER, SUB COURT, ERNAKULAM. PIN-682 011. R2 BY ADVS. SRI.VARGHESE C.KURIAKOSE, SRI.ADEEP ANWAR. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.2022/2011-O: APPENDIX PETITIONER'S EXHIBIT:- EXT.P.1: COPY OF THE ORDER DT. 17/01/2011 IN I.A. 16/11 IN CMA.2/11 OF 2ND ADDL. DISTRICT COURT, ERNAKULAM. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.2022 of 2011 --------------------------------------- Dated this 27th day of October, 2011 JUDGMENT Petitioner is aggrieved by Ext.P1, order dated 17.01.2011 on I.A.No.16 of 2011 in C.M.A.No.2 of 2011 of the Court of learned First Additional District Judge, Ernakulam. By the said order, learned District Judge modified the order dated 04.01.2011 and granted time to the petitioner to vacate the premises till 31.01.2011. 2. The issue arises from an insolvency proceeding initiated by petitioner in the Court of learned Sub Judge, Ernakulam as I.P.No.5 of 2006. The receiver has taken possession of property of petitioner/debtor which includes the residential building. The first respondent is a secured creditor, the property was sold in Court auction and purchased by the second respondent. That sale was confirmed. That was followed by the second respondent filing application under Order XXI of Rule 95 of the Code of Civil Procedure for delivery of property. In the meantime, petitioner was getting time from the insolvency Court to vacate the premises. The order passed by the insolvency Court was challenged in C.M.A.No.2 of 2011. There was an order O.P(C).No.2022 of 2011 -: 2 :- of stay granted by the learned District Judge which on the request of the second respondent was modified as per Ext.P1, order. It is challenging Ext.P1, order that petitioner has come to this Court with a prayer that learned District Judge may be directed to hear C.M.A.No.2 of 2011 at the earliest and to issue an order or prohibitory injunction restraining the insolvency Court from evicting petitioner from his residential building until disposal of the C.M appeal. 3. Learned counsel for petitioner has described the pathetic condition the petitioner is placed on account of illness and financial difficulties. Learned counsel for the second respondent has brought to my notice two applications preferred by petitioner in the insolvency Court whereby, after the receiver took possession of the property he sought time to vacate the premises even offering to pay occupation charges @`.1,500/- per month. Insolvency Court while disposing of I.A.No.6557 of 2007 in the insolvency proceeding has observed that so far as secured creditor is concerned, his right to realise and deal with the property is not affected by Sec.20 of the Insolvency Act. 4. As petitioner in the insolvency Court requested and obtained time to vacate the premises, it is not necessary for this O.P(C).No.2022 of 2011 -: 3 :- Court to grant any relief. But it is open to the petitioner to urge all his contentions in C.M.A.No.2 of 2011 if it arises for consideration. Learned First Additional District Judge is directed to dispose of the C.M appeal as early as possible. With the above direction, this original petition is closed. (THOMAS P. JOSEPH, JUDGE) Sbna/-