IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 OP(C).No. 2808 of 2011(O) ------------------------------------- [O.S.NO.288/2009 OF THE MUNSIFF'S COURT,VARKALA] .................... PETITIONER: ------------------- KEERTHY.S.,D/O.SANTHOSH KUMAR, KAVITHA, MAITHANAM, VARKALA. BY ADV. SRI.R.ANILKUMAR. RESPONDENTS: ------------------------ 1. VELAYUDHAN RAVEENDRADAS, BHARATHI BHAVAN, VARKALA DESOM & VILLAGE, PIN: 695 141. 2. VELAYUDHAN SURESH, PADMATHEERTHAM VEEDU, THACHODU, CHEMMARUTHY DESOM & VILLAGE, PIN: 695 141. 3. NARAYANAN CHANDRADAS, CHANDRA BHAVAN, CHERUKUNNAM DESOM, VARKALA VILLAGE, PIN: 695 141. 4. NADESAN SANTHOSHKUMAR, CHAKKY, MUNDAYIL, VARKALA, PIN: 695 141. 5. RAGHAVAN SUDHAKARAN, VILAYIL VEEDU, MELVETTOOR DESOM AND VILLAGE, PIN: 695 141. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.2808/2011-O: APPENDIX PETITIONER'S EXHIBITS: EXT.P.1: COPY OF THE ORDER IN CMA.14/2009 CMA 15/2009 CMA 16/2009 CMA 17/2009 DTD. 16/06/2009. EXT.P.2: COPY OF THE ORDERS IN E.A. NO. 211 TO 214 IN E.P.NO.18/01 IN O.S. NO. 228/99 DTD. 12/04/2011 IN MUNSIFF'S COURT, VARKALA. EXT.P.3: COPY OF THE JUDGMENT IN O.P(C).NO.2161/2011 DTD. 8TH DAY OF JULY, 2011. EXT.P.4: COPY OF THE ORDER IN E.A. NO.146/11 IN O.S. NO. 288/99 DTD. 20TH JULY 2011. EXT.P.5: COPY OF THE ORDER IN E.A. NO. 149/2011 IN O.S. NO. 288/1999 PASSED BY THE MUNSIFF'S COURT, VARKALA. EXT.P.6: COPY OF THE ORDER OF STAY OF ISSUE OF SALE CERTIFICATE PASSED BY THE MUNSIFF'S COURT, VARKALA IN E.A. NO.147/2011 IN O.S. NO.288/99 DTD. 25/06/2011. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2808 of 2011 -------------------------------------- Dated this the 25th day of August, 2011. JUDGMENT Auction purchaser is the petitioner. In a money decree in O.S.No.288 of 2009 of the court of learned Munsiff, Varkala petitioner purchased the property in auction on 04.08.2003 being the highest bidder. Thereafter there were a number of proceedings relating to the validity of sale filed by the decree holder as well as judgment debtors. As many as four petitions were filed to set aside the sale under Rule 90 of Order XXI of the Code of Civil Procedure (for short, “the Code”). Those applications had different fate at different stages and the last is a dismissal of the application by Ext.P2, order dated 12.04.2011 (as the learned counsel submits). Grievance of petitioner is that even thereafter, the sale was not confirmed and sale certificate was not issued to the petitioner. The executing court passed Ext.P6, order dated 25.07.2011 on E.A.No.147 of 2011 staying further proceedings in execution until the appeal and the application to condone the delay in filing that appeal preferred before learned Sub Judge are disposed of. The said order is under challenge. 2. Learned counsel contends that even the number of the appeal and the application to condone the delay are not mentioned in the impugned order. It is also contended that the executing court should not have granted stay until OP(C) No.2808/2011 2 disposal of such applications since if at all it is necessary, it is open to the party concerned to obtain stay from the appellate court where the appeal is said to be preferred. It is submitted that the amount is lying in deposit in the executing court without accruing interest and that petitioner is being put to loss. 3. It appears that there was contest as to the validity of sale and that has not been finalised. True that the number of the appeal and the application to condone the delay are not mentioned in Ext.P6, order. Assuming that there was no such appeal or application to condone the delay, petitioner could have sought a review of the stay order. The appellant in the appeal (if any filed) could not have obtained a stay (until the appeal is admitted). Then the appropriate course was to move the executing court. If not under Rule 26 of Order XXI of the Code, the executing court has power under Section 151 of the Code to grant appropriate relief having regard to the facts and circumstances. The issue of sale certificate in favour of petitioner is of no use also if the appeal is ultimately allowed. I therefore do not find reason to interfere. 4. So far as submission that the amount is lying in deposit in the executing court without accruing interest is concerned, I make it clear that it is open to the petitioner to request to transfer the amount either to the Treasury or OP(C) No.2808/2011 3 a Nationalised Bank of petitioner's choice if that is permissible under the law so that the amount will accrue interest. If any such request is made, learned Munsiff shall pass orders thereon after hearing parties to the execution petition. With the above observation this Original Petition is disposed of. THOMAS P.JOSEPH, Judge. cks