IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 OP(C).No. 1808 of 2011(O) -------------------------------- OS.82/2002 of PRINCIPAL SUB COURT,ATTINGAL .................... PETITIONER --------------- PRAKASHAN,AGED 57 YEARS,S/O.JANARDHANAN, ARYA NIVAS,KORANI PO, CHEMPAKAMANGALAM,PILLAVEETTU MURI, VELLOOR VILLAGE. BY ADVS. SRI.P.HARIDAS SMT.SIKKY RAVISNAKAR RESPONDENT(S): --------------------- REENA SATHYAN ,RESIDING AT REENA BHAVAN, MUDAPURAM PO, CHIRAYINKEEZHU - 695 304. R1 BY ADV. SRI.MILLU DANDAPANI THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 1808/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE E.P.NO.136/2005 BEFORE THE SUB COURT, ATTINGAL DATED NIL. P2: COPY OF THE ORDER DATED 16/08/2006 IN I.A. NO.54/2006 IN R.F.A. NO.8/2006 OF THIS HONOURABLE COURT. P3: COPY OF THE PROCLAMAITON NOTICE FOR AUCTION SALE AND DESCRIPTION OF PROPERTY DATED 11/10/2009. P4: COPY OF THE NO OBJECTION MEMO DATED 15/03/2010. P5: COPY OF THE SALE DEED NO.2056/2001 DATED 15/10/2001. P6: COPY OF THE PETITION IN E.S.295/2010 FILED BY THIS PETITIONER DATED 15/12/2010 BEFORE THE ATTINGAL SUB COURT. P7: COPY OF THE OBJECTION FILED BY THIS PETITIONER DTD.31/03/11. P8: COPY OF THE OBJECTION FILED BY THIS PETITIONER IN E.A. NO.296/2010 DATED NIL BEFORE THE SUB COURT, ATTINGAL. P9: COPY OF THE REVIEW APPLICATION IN E.S.295/2010 FILED BY THE PETITIONER DATED 01/04/2011 BEFORE THE SUB COURT, ATTINGAL. P10: COPY OF THE OBJECTION FILED BY THE PETITIONER IN E.A.296/2010 DATED 08/04/2011. P11: COPY OF THE JUDGMENT DATED 6TH DAY OF MAY, 2011 IN O.P.C. NO.1593/2011 OF THIS HONOURABLE COURT. P12: COPY OF THE ORDER DATED 31/03/2011 IN E.A.295/2010 IN O.S.82/2002 BEFORE THE SUB COURT, ATTINGAL. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1808 of 2011 --------------------------------------- Dated this 08th day of August, 2011 JUDGMENT Petitioner challenges Ext.P12, order dated March 31, 2011 on E.A.No.295 of 2010 and the order dated April 12, 2011 on E.A.No.98 of 2011 in E.P.No.136 of 2005 in O.S.No.82 of 2002 of the Court of learned Sub Judge, Attingal. Respondent has obtained a decree for money against the petitioner. Petitioner challenged that order in R.F.A.No.8 of 2006 and this Court passed Ext.P2, order of stay on August 16, 2006 on condition that petitioner furnishes security for the decreed amount to the satisfaction of the executing court. The half share belonging to the petitioner in 10 cents had been attached. That half share was offered as security. It is submitted that the executing court was not impressed by that security and directed deposit of cash security. It is submitted that petitioner deposited `.4,50,000/- as cash security and produced fixed deposit receipts in the executing court but, that was not accepted. In the meantime the half share of petitioner in the above said 10 cents was brought up for sale, sold in auction and purchased by the respondent/decree holder. The sale certificate also was issued to the respondent. O.P(C).No.1808 of 2011 -: 2 :- Respondent filed E.A.No.295 of 2010 for delivery of the property and E.A.No.296 of 2010 for appointment of an Advocate Commissioner to demarcate the half share of petitioner in the property sold to the respondent. E.A.No.295 of 2010 was allowed by the executing court as per Ext.P12, order stating that no objection is seen filed and hence delivery of joint possession in favour of the respondent is allowed. It is submitted that petitioner had filed objection to E.A.No.295 of 2010 even before Ext.P12, order was passed but that order was not taken into account. On that ground petitioner sought review of the said order vide, E.A.No.98 of 2011. Executing court dismissed E.A.No.98 of 2011 as per order dated April 12, 2011 observing that the objection to E.A.No.295 of 2010 had been filed on 28.02.2011 (ie, before Ext.P12, order) and delivery was ordered but no legally sustainable objection was raised in the objection. The executing court was not inclined to review the order because there was no legally sustainable objection on E.A.No.295 of 2011. Ext.P12, order and order on E.A.No.98 of 2011 are under challenge in this original petition. Learned counsel for petitioner asserted that no notice of sale of property was given to the petitioner. It is also contended that the Advocate Commissioner O.P(C).No.1808 of 2011 -: 3 :- could not simply demarcate the half share of petitioner in the 10 cents. Learned counsel submitted that petitioner is prepared to deposit the entire amount due under the decree, if given two months' time. 2. Learned Senior Advocate for the respondent has contended that there was no valid objection to the delivery of property as prayed for in E.A.No.295 of 2010 since sale of half share of petitioner has already taken place and sale certificate also has been issued to the respondent. 3. I am not going into that question at this stage. It is seen that notwithstanding the objection petitioner had raised to E.A.No.295 of 2010, executing court has disposed of E.A.No.295 of 2010 by Ext.P12, order as if there was no objection which certainly is a mistake committed by the executing court. In that view of the matter without considering that objection executing court ought not have disposed of E.A.No.295 of 2010. The request for review could not have been disallowed for the reason that no valid objection was raised (which did not even come to the notice of the executing court). 4. So far as the submission of learned counsel for petitioner that petitioner is prepared to deposit the amount due O.P(C).No.1808 of 2011 -: 4 :- under the decree is concerned, I think, that request has to be made in R.F.A.No.8 of 2006 and appropriate orders obtained. 5. Since the executing court has disposed of E.A.No.295 of 2010, I am inclined to interfere with Ext.P12, order and the order dated April 12, 2011 on E.A.No.98 of 2011. Resultantly this original petition is allowed in the following lines: The order dated April 12, 2011 on E.A.No.98 of 2011 in E.P.No.136 of 2005 in O.S.No.82 of 2002 will stand set aside and the order dated March 31, 2011 on E.A.No.295 of 2010 in O.S.No.82 of 2002 of the Court of learned Sub Judge, Attingal will stand reviewed. The executing court shall consider E.A.No.295 of 2010 afresh in the light of objection preferred to that application and pass appropriate orders. (THOMAS P JOSEPH, JUDGE) Sbna/-