IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 OP(C).No. 2223 of 2011(O) --------------------------------- OS.198/1995 of PRL.SUB COURT,IRINJALAKUDA .................... PETITIONER --------------- CHANDRAN, S/O.MOOLEPARAMBIL VELAPPAKUTTY KARALAM VILLAGE AND DESOM. BY ADV. SRI.T.N.MANOJ RESPONDENT(S): LEGAL HEIRS OF THE ORIGINAL JUDGEMENT DEBTOR ------------------------------------------------------------------------- 1. BHARGAVI, S/O.LATE NJATTUVETTI KUMARAN, NEDUMBAL DESOM, THOTTIPPAL VILLAGE, MUKUNDAPURAM TALUK - 680 503. 2. RAJAN, S/O.LATE NJATTUVETTI KUMARAN, NEDUMBAL DESOM, THOTTIPPAL VILLAGE, MUKUNDAPURAM TALUK - 680 503. 3. ANIL, S/O.LATE NJATTUVETTI KUMARAN, NEDUMBAL DESOM, THOTTIPPAL VILLAGE, MUKUNDAPURAM TALUK - 680 503. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 2223/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PETITION TO REDUCE THE UPSET PRICE. P2: COPY OF THE ORDER DATED 23/02/2011 IN E.P. NO.268/2006 IN O.S. 198/1995 OF THE SUB COURT AT IRINJALAKUDA. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2223 of 2011 --------------------------------------- Dated this 29th day of August, 2011 JUDGMENT Respondents are served, but there is no response. 2. Ext.P2, order dated February 23, 2011 of the Court of learned Sub Judge, Irinjalakkuda on E.P.No.268 of 2006 in O.S.No.198 of 1995 is under challenge. Petitioner obtained a decree for recovery of money in O.S.No.198 of 1995 against one Kumaran. On the death of judgment debtor, petitioner proceeded against his legal representatives for realisation of the amount by sale of 10cents over which petitioner had obtained a charged decree. The property was brought up for sale in the year 2007, fixing upset price at `.2,00,000/-. Petitioner purchased the property for `.2,05,000/- but the sale was set aside since there was no publication in the Collectorate notice board as required. Again, the property was brought up for sale fixing upset price as `.3,00,000/- while the amount due to the decree holder was `.20,000/- (as on then). Hence petitioner filed an application to reduce the upset price. Executing court directed that the auction shall not be for less than `.2,00,000/-. There was no bidder for the property on 22.02.2011 and for the reason that petitioner was absent, there was no representation and no steps were taken, executing court dismissed the execution petition and directed to O.P(C).No.2223 of 2011 -: 2 :- lift attachment and to intimate that fact to the Village Officer and Sub Registrar. 3. Learned counsel has raised a contention that counsel for petitioner was present in the executing court at the relevant time. It is pointed out that pursuant to Ext.P2, order respondents have filed application in the executing court to intimate lifting of attachment to the Sub Registrar without giving notice to the petitioner since the execution petition was dismissed for default. 4. Now I am at the question whether there was any lack of diligence on the part of petitioner in proceeding with the execution petition. Having heard learned counsel and gone through the order under challenge I am not inclined to think that there was any gross negligence or latches on the part of petitioner. I must bear in mind that petitioner had taken steps to bring the property for sale. In the circumstance I am inclined to interfere with the order. Resultantly this original petition is allowed. The impugned order is set aside. Execution petition will stand restored to the file of learned Principal Sub Judge, Irinjalakkuda who shall proceed with the matter as provided under the law. (THOMAS P JOSEPH, JUDGE) Sbna/-