IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 W.P(C).No. 26992 of 2008(L) -------------------------- OA.138/2002 OF DEBTS RECOVERY TRIBUNAL, ERNAKULAM. .................... PETITIONERS: ------------ 1. D. AJITH, AGED 37 YEARS, S/O. DHARMAJAN KALLUVILA VEEDU, KOWDIAR,TRIVANDRUM. 2. D.ANITHA AGED 36 YEARS, D/O. DHARMAJAN, KALLUVILA VEEDU, KOWDIAR,TRIVANDRUM. BY ADV. SRI.C.S.MANU SRI.S.K.PREMRAJ SRI.ANOOP JOSEPH SRI.ABHILASH AKBAR SRI.T.B.SIVAPRASAD RESPONDENTS: ------------- 1. DRT ERNAKULAM 2. RECOVERY OFFICER DEBTS RECOVERY TRIBUNAL ,ERNAKULAM. 3. MOHANA CHANDRAN NAIR S/O. K.P.VELAPPAN NAIR (AGE NOT KNOWN TO THE PETITIONER) T.C.43/375,DARSANA P.O.,MANACAUD KAMALESWARAM, THIRUVANANTHAPURAM DISTRICT. 4. UNION BANK OF INDIA KOZHIKODE MAIN BRANCH CHEROOTTY ROAD,CALICUT. BY SRI.A.V.THOMAS-R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 4/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. ================================== W.P.(C).No. 26992 of 2008 - L ==================== Dated this the 4th day of September, 2008. J U D G M E N T Adv.Sri.A.V.Thomas took notice for the 4th respondent. Notice on 3rd respondent is dispensed with, in the nature of the directions being issued hereunder, preserving his right to move for review if, aggrieved. Notice to respondents 1 and 2 is dispensed with. 2. Petitioners are debtors under the recovery certificate issued by the Debt Recovery Tribunal. An item of property belonging to them was listed for sale. The recovery officer, at one point of time, had issued an order that petitioners were entitled to have private sale. After a long lapse of time, nothing turned out, and the property was sold on 17.1.2008. Thereafter, the petitioners applied for review of that order of sale and the sale certificate. Within the framework of the law applicable to recovery proceedings, there is not much of a scope for any review in that, except may be, in exceptionally exceptional situations of inexcusable and obvious error apparent on the face of the record. The only remedy that was available was to have the sale set aside, either by depositing the amount or on other W.P.(C).No. 26992 of 2008 - L 2 grounds provided under the II schedule to the Income Tax Act, 1961. This has also been so held by me as per judgment dated 11.3.2008 in W.P.(C).No.8153/2008, which is stated to be one arising from O.A.No.138/2002, from which the case in hand also arises. 3. The cause of action for filing this writ petition is that the recovery officer issued Ext.P3 order, rejecting the application of the petitioners to review the order of sale and that the petitioners have filed an appeal against it to the Debt Recovery Tribunal with an application to condone the delay of 35 days and that, pending consideration of those applications, Ext.P6 delivery certificate has been issued by the Tribunal, which according to the petitioners would result in physical dispossession, this evening. 4. In the light of the sequence of events and the legal issues noticed above, I do not find any ground to issue any order in favour of the petitioners, notwithstanding the plea that there is no presiding officer on regular basis, in the Debt Recovery Tribunal. Faced with that situation, the learned counsel for the petitioners requested that the petitioners may be granted two months' time as a last opportunity to vacate from the premises. W.P.(C).No. 26992 of 2008 - L 3 I do not find any room to grant any order as such. This is for the simple reason that the execution proceedings have been dragged on for quite a long time on some premise or the other. However, since it is stated that the premise is a residential one, it is directed that if the petitioners file an affidavit before the District Collector, Thiruvananthapuram, tomorrow, undertaking to vacate on or before 16th September, 2008 and giving up all other contentions including the appeal filed before the Debt Recovery Tribunal, actual physical dispossession will stand deferred. Further, the District Collector will extend such police support as is necessary to ensure dispossession, the following day. If such an affidavit with undertaking as aforesaid is not filed, any benefit of this judgment, to the petitioners, will stand recalled. It is further ordered that since this judgment is dictated in the open court in the presence of counsel for petitioners and the 4th respondent, they may act in accordance with this, without awaiting issuance of a certified copy. THOTTATHIL B. RADHAKRISHNAN, JUDGE. bkn/-