IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 FAO.No. 55 of 2009(C) -------------------- AGAINST THE ORDER DATED 05/11/2007 IN EA.45/2003 IN EP.122/1995 of SUB COURT, MUVATTUPUZHA .................... APPELLANT/ PETITIONERS; -------------------------------- 1. VIJAYAN, S/O.LATE CHELLAPPAN, 47 YEARS, PULINCHUVATTIL HOUSE, KAKKOOR KARA, THIRUMARADY VILLAGE. 2. SANAL, S/O.LATE CHELLAPPAN, 38 YEARS, PULINCHUVATTIL HOUSE, KAKKOOR KARA, THIRUMARADY VILLAGE. 3. PRASAD, S/O.LATE CHELLAPPAN, 38 YEARS, PULINCHUVATTIL HOUSE, KAKKOOR KARA, THIRUMARADY VILLAGE. 4. PRADEEP, S/O.LATE CHELLAPPAN, 30 YEARS, PULINCHUVATTIL HOUSE, KAKKOOR KARA, THIRUMARADY VILLAGE. 5. GEETHA, W/O.PRASAD, 32 YEARS, PULINCHUVATTIL HOUSE, KAKKOOR KARA, THIRUMARADY VILLAGE. 6. AJU DIVAKARAN, S/O.DIVAKARAN, PULINCHUVATTIL HOUSE, KAKKOOR KARA, THIRUMARADY VILLAGE, MUVATTUPUZHA TALUK. 7. MANU DIVAKARAN, S/O.DIVAKARAN, 25 YEARS, PULINCHUVATTIL HOUSE, KAKKOOR KARA, THIRUMARADY VILLAGE, MUVATTUPUZHA TALUK. BY ADV. SRI.V.B.HARI NARAYANAN SMT.M.J.RAJASREE RESPONDENTS: RESPONDENTS: --------------------------- 1. THE FEDERAL BANK LTD., PALAI BRANCH REPRESENTED BY ITS MANAGER. 2. M/S.SREE RAM LIQUORS, RAMAPURAM P.O., - DELETED PALAI. 3. N.VIJAYAKUMAR, AGED 38, S/O.NEELAKANDAN, ASARIPARAMBIL, RAMAPURAM P.O. 4. K.SALIM, AGED 36 YEARS, S/O.KUNJURAMAN, PULINCHUVATTIL HOUSE, - DELETED RAMAPURAM. 5. P.V.GOPI, AGED 46, S/O.VELAYADHAN, PULINCHUVATTIL HOUSE, KAKKOOR P.O., KOOTHATTUKULAM. THE NAMES OF RESPONDENTS 2 AND 4 STRUCK OFF FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONERS AS PER ORDER DT. 27.8.2009 IN I.A. 2833/2009. BY ADV. SRI.JOY THATTIL ITTOOP FOR R3,5 SRI.MOHAN JACOB GEORGE FOR R1 SMT.REENA THOMAS FOR R1 SRI.L.RAM MOHAN FOR R1 SMT.P.V.PARVATHI FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 11/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A. K. BASHEER & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No: 55 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of January, 2010. JUDGMENT Basheer J., The appellants are strangers to a decree for realisation of money. They impugn the order passed by the execution court on a petition filed by them under Order 21 Rule 90 of the Code of Civil Procedure, seeking to set aside the sale of the mortgaged property. 2. Respondent No.1, Bank obtained a decree against respondent Nos.2 to 5 (respondents 2 and 4 have since been deleted from the party array), on April 7, 1994 for a sum of Rs.4,94,631/- with interest and costs. According to the appellants, they had purchased the mortgaged property on the strength of a registered assignment deed, dated December 26, 1995. F.A.O. No: 55 OF 2009 :2: 3. When the decree was put in execution, the decree holder/bank purchased the property in the auction held on January 3, 2003 for a sum of Rs.5,01,000/-. It is on record that the appellants had earlier filed an application before the execution court under Order 21 Rule Rule 58. The said application was dismissed and subsequently, the sale was confirmed in favour of the decree holder, Bank. Thereafter, the appellants filed the above application under Order 21 Rule 90. The court below, by the impugned order, held that the said application was totally misconceived and accordingly it was dismissed. 4. When the this appeal came up for admission on July 1, 2009, this court had heard learned counsel for the parties and directed the appellant to deposit a sum of Rs.10,00,000/- towards the decretal sum. The bank was directed to file a statement showing the balance amount payable under the decree. 5. To make a long story short, the appellant thereafter made further deposits totalling to Rs.16,61,016/-, which admittedly will F.A.O. No: 55 OF 2009 :3: cover interest up to December 31, 2009, costs etc. In short the entire amount receivable by the bank under the decree has been remitted by the appellant before this court. 6. The short question that arises for consideration is whether in the peculiar facts and circumstance of the case, the appellants are to be given any relief in this appeal. 7. Having heard learned counsel for the parties and having regard to the fact that the appellants have already deposited the entire money covered under the decree, we are of the view that the impugned order is liable to be set aside. We do so. We are persuaded to take the above view since no prejudice is likely to be caused to the bank, which would be understably interested only in getting decreed sum and may not be very keen to hold on to the property, though it had purchased the same in court auction and that too after obtaining permission from the court. 8. In the above facts and circumstances, the sale in favour of the bank in E.P. No.122 of 1995 in O.S. No: 70 of 1993 is set aside. F.A.O. No: 55 OF 2009 :4: The amount deposited by the appellant before this court shall be released to respondent No.1, bank. 9. The other formalities, if any, in respect of the sale of the subject matter, shall be completed by the bank in favour of the judgment debtors at their own expenses and costs, at the earliest. A. K. BASHEER, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/