IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 WP(C).No. 922 of 2008(I) ---------------------------------- OS.919/2004 OF PRINCIPAL SUB COURT,ERNAKULAM ........................................... PETITIONERS: -------------------- 1. SALVY THOMAS, AGED 40 YEARS, W/O. THOMAS JOSEPH, H.NO.127, MATHER NAGAR, CHANGAMPUZHA NAGAR P.O., KALAMASSERY, COCHIN-33. 2. GIRIJA R.NAIR, AGED 56 YEARS, W/O. RAGHAVAN NAIR, FLAT 6 B, LOTUS APARTMENT, DH ROAD, ERNAKULAM. BY ADV. ADV. SRI. M.C. SEN (SR.) SRI.P.SANJAY SRI.A.PARVATHI MENON RESPONDENTS: ---------------------- 1. VIJAYA HOME LOANS LTD., HAVING ITS REGISTERED OFFICE AT G.V.S.COMPLEX, IIND FLOOR, 329, 10TH 'A' MAIN BLOCK, I NAGAR, BANGALORE-II. 2. FAIR GROWTH HOUSE FINANCE LTD., HAVING ITS REGISTERED OFFICE AT G.V.S.COMPLEX, 329, 10TH 'A' MAIN III BLOCK, I NAGAR, BANGALORE- II, REP. BY ITS ASSISTANT GENERAL MANAGER, POWER OF ATTORNEY HOLDER. 3. M/S. LOTUS CONSTRUCTIONS NO.38, IVTH FLOOR, GCDA COMMERCIAL COMPLEX, MARINE DRIVE, ERNAKULAM, COCHIN-682 031, REPRESENTED BY ITS MANAGING PARTNER, MR. T.P.MURALEEDHARAN, AGED ABOUT 50 YRS, S/O. LATE M.NARAYANA MENON, NO.31/224A, PUSHPANJALI, VYTTILA, COCHIN-682019. 4. SRI. IBRAHIMKUTTY, AGED 44 YEARS, S/O. LATE HANAB P.C.MOHAMMED, MAKHRAYIL HOUSE, OLD ST.AUGUSTIN ROAD, PULLEPPADY, COCHIN-682 035. 5. MRS. L. SREEDEVI, W/O. LATE P.N. PILLAI, NO. 5 HIG PANAMPILLY NAGAR, COCHIN. WP(C) NO: 922/2008 6. MRS. USHA PILLAI, D/O. LATE P.M. PILLAI, NO. 5, HIG PANAMPILLY NAGAR, COCHIN. 7. K.P. BASHEER, S/P. C.K. PAREEKUTTY, KALPPATH HOUSE, EDAPPALLY, COCHIN-24. 8. C.C. ZUBAIR, S/O. MARIKKAR, KOCHUPARAMBIL HOUSE, EDAPPALLY, COCHIN- 682024. R1 BY ADV. SRI.S.R.DAYANANDA PRABHU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 922/2008 APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE SALE DEED DT. 3/4/97. EXT.P2. COPY OF THE SALE DEED DT. 5/11/2005. EXT.P3. COPY OF THE DETAILED CLAIM PETITION FILED BY P1. EXT.P4. COPY OF THE ORDER DT. 26/6/06. EXT.P5. COPY OF THE NOTICE. EXT.P6. COPY OF THE DOCUMENT NO. 4973/07 DT. 7/6/07. RESPONDENT'S EXHIBITS NIL. True copy tga M.N.KRISHNAN, J ===================== W.P.(C) No.922 OF 2008 ===================== Dated this the 29th day of January 2008 JUDGMENT This writ petition is preferred with a prayer to quash Ext.P5 notice and not to proceed with the auction till a certified copy of the order in Ext.P4 is obtained and an appeal is preferred. Here, the original occupant was one Rev.Fr.George Thayyil. During his life time he executed a Will and the legal heirs thereafter assigned the property in favour of the first petitioner, who in turn had assigned it to the second petitioner. It is submitted that the original occupant moved a suit O.S.No.121 of 2003 to declare that decree in O.S.No.919 of 2004 is not binding on him and that has been rejected. The contention of the petitioners herein is that they are the bona fide purchasers for valuable consideration. It is a settled principle of law that mortgage runs with the land and not with the individual. But, I am not going into further details at this stage for the reason that the first petitioner moved an application under Order XXI Rule 58 C.P.C., which has been dismissed by the executing court without a detailed order presumably thinking that it is a case which has to be rejected under Order XXI Rule 58 WP(C) 922/2008 -:2:- (1)(b) C.P.C. Learned counsel for the petitioners submits that they want to prefer an appeal against the said order and has applied for the same and just obtained it. Therefore they pray for a breathing time and if the property is sold it will cause hardship to them. Learned counsel for the decree holder very strongly objects to the same on the ground that really there is no locus standi for these petitioners to have such prayers. Whatever it is, even going by the sale proclamation the 2nd petitioner is shown to be the occupant of the building, i.e. Apartment No.6B. Since the petitioners want to prefer an appeal against the dismissal of the execution application, I feel some time can be granted to them and the writ petition can be disposed of on the following conditions:(1) Petitioners herein are directed to deposit a sum of Rs.4 lakhs(rupees four lakhs only) within 3 weeks from today before the executing court.(2) The executing court shall disburse 50% of the said amount in favour of the decree holder. (3) The executing court is directed to issue an urgent copy of the order to the first petitioner herein, if properly applied for and the first petitioner has to seek her remedies before the appropriate authorities within six weeks from today.(4) If the amount is not deposited within the stipulated time and if appropriate remedies are not taken up and interim orders are not obtained, then the court below can proceed with the sale of Apartment No.6B shown as item No.3 in the sale WP(C) 922/2008 -:3:- proclamation. In W.P.(C)909 of 2008 and W.P.(C)922/2008, I make it clear that there is only deferring of sale with respect to Apartment Nos.6A and 6B and deference shall not relate to Apartment Nos.1,4 and 5. Needless to say that the executing court is at liberty to proceed with the sale of items 1, 4 and 5 in accordance with law. M.N.KRISHNAN, JUDGE Cdp/-