IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 WP(C).No. 13913 of 2009(O) ----------------------------------------- EA 959/07 AND EA. 961/07 IN EP 139/07 IN EP. 134/01 IN OS.455/1995 of SUB COURT,IRINJALAKUDA .................... PETITIONER(S): ------------------------- ASHARAF,S/O.PUZHAKARAYILATH ABDU, PAPPINIVATTOM VILLAGE,KODUNGALLUR TALUK. BY ADVS.MR.P.V.KUNHIKRISHNAN SMT.BINDU GEORGE RESPONDENT(S): ------------------------- MANOHARAN,S/O.MADATHINGAL KUMARAN, THEKKUMKARA VILLAGE,MUKUNDAPURAM TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.13913 of 2009 - O --------------------------------- Dated this the 17th day of July, 2009 J U D G M E N T The judgment debtor in E.P.No.134/2001 in O.S.No.455/95 on the file of the Principal Sub Court, Irinjalakkuda has filed this writ petition seeking the following reliefs: “i) To call for the entire records which lead to Ext.P5 order and issue an order or direction quashing the same. ii) To issue an order or direction allowing E.A.No.959/2007 and E.A.No.139/2004 in E.P.134/2001 in O.S.No.455/1995 on the file of the Subordinate Judge's Court, Irinjalakkuda.” 2. The case in brief is that towards satisfaction of the decree debt in a suit for money, on the steps taken by the decree holder, property of the coobligant to the transaction, second judgment debtor, wife of the petitioner, who is not made as a party in the present petition was brought to sale. To set aside the sale, the petitioner moved an application under Order XXI Rule 90 CPC. That application was dismissed and the sale was W.P.(C).No.13913 of 2009 - O 2 confirmed. Petitioner, thereupon moved a writ petition before this Court, which was also dismissed. Subsequently he moved a review petition, on which this Court passed an order that it would be open to the petitioner to seek restoration of the application moved to set aside the sale, which was dismissed for default, and the period spent before this Court in prosecuting the writ petition and also the review petition, could be canvassed for exemption under Section 14 of the Limitation Act. Pursuant thereto, petitioner moved an application before the court below for restoration of the application moved for setting aside the sale seeking condonation of the period in filing that application. The execution court after examining the records found even after condoning the period during which the petitioner prosecuted the writ petition as well as the review petition before this Court, there was a delay of 146 days. Noticing that, Order XXI Rule 90 CPC permits the court to entertain an application only if it is filed within a period of 60 days from the date of sale, restoration application moved by the petitioner was found not entertainable and it was dismissed by the execution court. Copy of that order W.P.(C).No.13913 of 2009 - O 3 is Ext.P5. Impeaching the correctness and propriety of Ext.P5 order, petitioner has filed this writ petition seeking the aforementioned reliefs invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. 4. It is submitted that during the pendency of the writ petition, pursuant to the direction passed by this court and also before the execution court, petitioner has deposited substantial amounts towards satisfaction of the decree debt. According to the counsel, already a sum of Rs.58,000/- had been deposited. The principal sum covered by the decree was only Rs.66,900/-. Whatever that be, in the present writ petition challenging an order passed by the execution court declining the request of the petitioner to restore an application moved under Order XXI Rule 90 CPC as time barred, this Court cannot show any indulgence as the entertinability of a petition under Order XXI Rule 90 CPC is strictly governed by the law of limitation applicable. But I make it clear that if sale of the property is conducted without adjusting W.P.(C).No.13913 of 2009 - O 4 the deposit already made by the judgment debtor towards decree debt, then it is open to him to seek withdrawal of the amount from the execution court, after such enquiry, if any, warranted with notice to the decree holder. Subject to the above observation, this writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-