IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 CRP.No. 17 of 2010() -------------------- EA NO.285/2009 IN EP.146/2009 of MUNSIFF COURT,PERINTHALMANNA .................... REVN. PETITIONER(S)/JUDGEMENT DEBTOR ------------------------------------------------ MOHAMMED SALAHUDHEEN, S/O.ABOOBACKER HAJI, 19/242, PATTAMBI ROAD, PERINTHALMANNA, MALAPPURAM DT. BY ADV. SRI.C.M.MOHAMMED IQUABAL RESPONDENT(S): DECREE HOLDER ---------------------------- 1. SECRETARY, PERINTHALMANNA SERVICE CO-OPERATIVE BANK LTD., MANNARKKAD ROAD, PERINTHALMANNA. 2. T.AHAMED, ADVOCATE, PERINTHALMANNA AMSOM, DESOM, PERINTHALMANNA ADV. SRI.V.RAJENDRAN FOR R1 SMT.K.S.SABITHA FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.17 of 2010 -------------------------------------- Dated this the 20th day of October, 2010. ORDER Petitioner challenges the order of delivery as per E.A.No.285 of 2009 filed by the respondent consequent to the sale of property in court auction and its confirmation. 2. Respondent, the Perinthalmanna Service Co-operative Bank Limited has obtained awards against petitioner and his guarantor in A.R.C.Nos.2427/1997-1998 and 2014/1999-2000. Since petitioner did not pay the amount under those awards respondent filed E.P.Nos.166 of 2004 and 269 of 2004 respectively, for execution of the said awards. In execution also petitioner did not pay the amount and thereon the 6.5 cents belonging to the petitioner was sold in court auction on 18.09.2007 and purchased by the respondent. No petition to set aside the sale was filed and hence the sale was confirmed. Respondent filed E.P.No.146 of 2009 under Order 21 Rule 95 of the Code of Civil Procedure (for short, “the Code”) for enforcement of the sale certificate and E.A.No.285 of 2009 to effect delivery of the property. That application was allowed and delivery was effected on 15.12.2009. The order recording delivery is under challenge in this revision under Section 115 of the Code. 3. I have heard counsel on both sides. Though various contentions CRP No.17/2010 2 are raised in this revision as to the legality and correctness of the sale, its confirmation and order for delivery I find no merit in those contentions. I must bear in mind that no application was preferred in the executing court to set aside the sale. Hence those contentions do not carry any weight. Petitioner has however expressed willingness to pay the amount due to the respondent as on date of delivery so that the property sold and delivered could be saved. Learned counsel says that what is sold in court auction is the residential plot belonging to petitioner (excluding the house) and that the sale has affected beneficial enjoyment of the house where petitioner and family are residing. As per the direction issued by this Court respondent has filed a statement showing the amount due to it as on 15.12.2009 (the date of delivery). As per that statement the amount due is Rs.3,55,378/-. Petitioner has expressed willingness to pay the amount in two installments. I have heard learned counsel for respondent also. 4. Having regard to the circumstances stated by petitioner, I am inclined to take into account the grievance of petitioner notwithstanding that no application was filed to set aside sale. It is within the power of this court to exercise the supervisory jurisdiction in appropriate cases where the judicial conscience of this Court dictates it to act and when circumstances warrant such action. Ofcourse, care, caution and circumspection are required to be exercised in exercise of the supervisory jurisdiction. Here is a case where the residential plot of petitioner (excluding the house where he is residing) was sold in court auction. Petitioner though belatedly is willing to pay the amount due to the respondent as on the date of delivery. Having regard to these aspects I am CRP No.17/2010 3 inclined to think that ends of justice required this Court to exercise its revisional power. In appropriate cases the supervisory power of this Court under Article 227 of the Constitution also could come in aid of the party concerned. Keeping these things in mind I am inclined to set aside the sale having regard to the special facts and circumstances of the case but subject to conditions. Resultantly this revision is allowed in the following lines: The sale conducted by the executing court on 18.09.2007, its confirmation and the consequent issue of sale certificate would stand set aside subject to the following conditions: (i) Petitioner deposited in the executing court the sum of Rs.3,85,378/- (Rupees three lakhs, eightyfive thousand, three hundred and seventyeight only) for payment to the respondent in two installments as follows: (a) Half of the said amount shall be deposited in the executing court on or before 05.11.2010. (b) Rest of the amount shall be deposited in the executing court on or before 20.01.2011. CRP No.17/2010 4 (ii) On compliance of condition Nos.(a) and (b) stated above, the sale conducted on 18.09.2007, its confirmation and the sale certificate issued to respondent consequent thereto will stand set aside and the respondent shall put the petitioner in possession of the property within two weeks from the date of last deposit. (iii) The documents of title if any of petitioner concerning the property sold and in the possession or custody of respondent shall be delivered to the petitioner within two weeks from the date of last deposit. (iv) If inspite of compliance of condition Nos.(a) and (b) supra respondent did not put petitioner in possession of the property or the documents if any in its possession and/or custody is not delivered to the petitioner within the time specified, petitioner can take delivery of the property or such documents, if any, through the executing court. (v) In case petitioner does not comply with condition Nos. (a) and (b) supra, this petition will stand dismissed. I.A.No.85 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge.