IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 WP(C).No.35858 of 2008 (R) ---------------------------------- AGAINST THE ORDER IN IA.5127/2008 IN OS.499/2005 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONERS: ----------------- 1. VIJAYENDRAN P., AGED 44, S/O.PARAMESWARAN, T.C.16/784, KOCHAR ROAD, MANICK GARDEN, JAGATHY P.O., THIRUVANANTHAPURAM. 2. BINDU, AGED 37, W/O.VIJAYENDRAN, T.C.16/784, KOCHAR ROAD, MANICK GARDEN, JAGATHY P.O., THIRUVANANTHAPURAM. BY ADV. SRI.HARISH R. MENON SRI.K.T.SHYAMKUMAR RESPONDENTS: ------------------ 1. SIVANANDAN, S/O.MANICKAN PILLAI, NANDAVANAM PUTHEN BUNGLOW, CHOORAKKATTU, PALAYAM, CHENTHITTA, THIRUVANANTHAPURAM. 2. VIJAYAN, S/O.MADHAVAN, TC 41/1041, VILAYIL VILAKATHU VEEDU, KURIATHY, MANACUAD, THIRUVANANTHAPURAM. ADV. SRI.BRIJESH MOHAN FOR R2 SMT.RESMI G. NAIR FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.35858 of 2008 (R) APPPENDIX PETITIONERS' EXTS:- EXT.P1:- TRUE COPY OF THE PLAINT IN O.S.499/05. EXT.P2:- TRUE COPY OF THE PROCLAMATION OF SALE NOTICE DT.30/01/07. EXT.P3:- TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONERS BEFORE THE RECOVERY OFFICER, DEBT RECOVERY TRIBUNAL, ERNAKULAM. EXT.P4:- TRUE COPY OF THE PROCLAMATION OF SALE NOTICE DT.04/09/08. EXT.P5:- TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF I.A. NO.5128/08. EXT.P6:- TRUE COPY OF THE COMMON ORDER IN IA. NOS.5127/08 AND 5128/08. ............ K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C No.35858 of 2008 ------------------------------------------------ Dated this the 22nd day of January, 2009 JUDGMENT Service is complete. First respondent has not appeared. The second respondent has not filed any counter. Heard the counsel for the petitioner. 2. It is the case of the petitioners that they are having mortgage right over the scheduled property the property having been mortgaged to them by the second respondent on the strength of a power of attorney executed in his favour by the first respondent; that O.S.499/05 has been instituted by the petitioners before the Sub Court, Thiru- vananthapuram for recovery of the mortgage amount of Rs.2 lakhs and that in the meanwhile the Canara Bank has instituted proceedings before the D.R.T for realisation of amounts due to them on the strength of a prior W. P. C No.35858 of 2008 -2- mortgage; that the property that is being brought to sale in that proceeding is the scheduled property over which the petitioners are having a second charge and that therefore, the Canara Bank sought to be impleaded as a party in the present suit O.S.499/05 vide Ext.P5 application should not have been dismissed by the court below as has been done vide Ext.P6 order and therefore, Ext.P6 order deserves to be reversed and the Canara Bank Cantonment branch, Thiruvananthapuram be allowed to be impleaded as additional third defendant in the suit. The request is not at all tenable. 3. It is not in dispute that the first charge over the property is for the Canara Bank and it is after equitably mortgaging the property in favour of the Canara Bank that a mortgage deed has been created in favour of the petitioners/plaintiffs in O.S.499/05. When W. P. C No.35858 of 2008 -3- the Canara Bank is enforcing their right to recover the amounts due to them from the first defendant charged on the property equitably mortgaged to them, the petitioners cannot ask for the Canara Bank also being impleaded in the present suit as the Canara Bank is not at all responsible or liable for any relief that the petitioners/plaintiffs' claim in O.S. 499/05. Hence, this Writ Petition is devoid of merit. 4. In the result, I dismiss this Writ Petition but without prejudice to the rights of the petitioners to work out their remedies elsewhere. K.P.BALACHANDRAN, JUDGE kns/-