IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 OP(C).No. 1830 of 2011(O) -------------------------------- OS.110/2006 of I ADDL.SUB COURT, KOZHIKODE .................... PETITIONER: ---------------- SAJID.V, S/O. MOIDEEN, VALLIYATH, THURAYUR AMSOM AND DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SMT.T.RESMI DAMODARAN RESPONDENT(S): -------------------- 1. P.K. SHAKEELA,D/O. ABDURAHMAN, SIVAPURAM AMSOM AND DESOM, KOYILANDI TALUK, KOZHIKODE - 673 305. 2. POYILIL ABDUL RAZAK, S/O. MUAHMMED, KINALUR AMSOM AND DESOM, KOYILANDY TALUK, KOZHIKODE - 673 621. 3. EDAKUDI AMMED, S/O. MOIDEEN, KINALUR AMSOM AND DESOM, KOYILANDY TALUK, KOZHIKODE - 673 621 4. RANDODI VAYAL SUBAIDA, D/O. ABDULLA, RANDODI VAYAL, KINALUR AMSOM AND DESOM, KOYILANDY TALUK, KOZHIKODE - 673 621. 5. KANARAKUTTY, S/O. CHANDU,VELUTHEDATH HOUSE, NANMINDA AMSOM AND DESOM, KOZHIKODE TALUK - 673 613. 6. NANMINDA CO-OPERATIVE RURAL BANK LTD., REPRESENTED BY SECRETARY SAROJINI.M, D/O. KRISHNAN NAIR, NANMINDA AMSOM AND DESOM, KOZHIKODE TALUK - 673 613. R1 BY ADFS. SRI.K.RAMACHANDRAN SRI.P.RAMACHANDRAN R3-4 BY ADV. SRI.AVM.SALAHUDIN R6 BY ADV. SRI.T.G.RAJENDRAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 1830/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S. NO.110/2006 DATED 24/04/2006. P2: COPY OF THE E.A. NO.22/2008 DATED 14/01/2008. P3: COPY OF THE E.A. NO.222/2009 DATED 17/03/2009. P4: COPY OF THE E.A. NO.160/2009 DATED 27/02/2009 FILED BY THE PETITIONER. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1830 of 2011 ==================================== Dated this the 12th day of August, 2011 J U D G M E N T Petitioner is the auction purchaser in E.P. No.13 of 2007 in O.S. No.110 of 2006 of the court of learned first Additional Sub Judge-I(A), Kozhikode. In a decree for money property of judgment debtor was proclaimed and brought for sale. In the meantime on 14.01.2008, the 5th respondent filed a claim petition obviously under Order XXI Rule 58 of the Code of Civil Procedure. When that claim petition was pending property was sold on 15.01.2008 and purchased by the petitioner. Petitioner has deposited Rupees Four lakhs in the executing court. It is submitted that petitioner has filed E.A. No.160 of 2009 to set aside the sale. Grievance of petitioner is that his money is lying idle with the executing court for the last several years, he is not being allowed to withdraw the amount and at the same time proceedings are continuing without finality. It is therefore prayed that executing court may be directed to set aside the auction sale held on 15.01.2008 and return the purchase money to the petitioner. Further prayer is for a direction to the executing court to dispose of E.A. No.22 of 2008, E.A. Nos.160 and 222 of 2009. O.P(C) No.1830 of 2011 -: 2 :- 2. If the claim petition and petition to set aside sale are pending in the executing court it is for that court to decide those petitions. This Court cannot issue any direction as required, as to in what manner the executing court has to discharge its judicial functions. Therefore the prayer for a direction to the executing court to set aside the sale cannot be granted. 3. So far as the grievance of petitioner that his money is remaining idle in the executing court is concerned, it requires consideration. It is open to the petitioner if the proceedings are likely to prolong to request the executing court to transfer the money to a Nationalized Bank of petitioner's choice so that the money will accrue interest. I must also bear in mind that if ultimately the sale is set aside it is within the power of the executing court to award interest to the petitioner invoking Order XX1 Rule 93 of the Code. But the executing court has to dispose of the pending applications as early as possible. Resultantly, Original Petition is disposed of in the following lines. (a) Learned Sub Judge-I(A), Kozhikode is directed to dispose of E.A. Nos.22 of 2008, 160 of 2009 and 222 of 2009 in O.S. No.110 of 2006 O.P(C) No.1830 of 2011 -: 3 :- as early as possible having regard to the grievance of petitioner. (b) Petitioner will be at liberty to request the executing court to transfer the amount lying in deposit with the executing court to a Nationalized Bank of petitioner's choice, so that the amount will generate interest. THOMAS P. JOSEPH, JUDGE. vsv