IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932 OP(C).No. 885 of 2010(O) ------------------------ OS.319/2006 of PRL.SUB COURT,THRISSUR .................... PETITIONERS ------------------------------- 1. KRISHNAKUMAR, AGED 58 YEARS, BUSINESS, SON OF PADINJARETHALAKKAL NANU, EZHUTHASSAN, HILL GARDENS, KUTTANELLOOR DESOM, OLLUR VILLAGE, THRISSUR TALUK. 2. MALATHY, AGED 52 YEARS, WIFE OF KRISHNAKUMAR EZHUTHASSAN, HILL GARDENS, KUTTANELLOOR DESOM, OLLUR VILLAGE, THRISSUR TALUK. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.JOSON MANAVALAN RESPONDENTS: --------------- 1. INDIAN BANK, REP. BY ITS BRANCH MANAGER, GURUVAYOOR BRANCH, GURUVAYOOR P.O., THRISSUR DISTRICT, PIN-680 101. 2. JOJI JOHN, SON OF JOHN, CHAKKALAPARAMBIL OOKKEN HOUSE, MANAVALASSERY, MUKUNDAPURAM TALUK, PIN-680121.IRINJALAKKUDA 3. FRANSINA JOJI, W/O.JOJI, CHAKKALAPARAMBIL OOKKEN HOUSE, MANAVALASSERY, MUKUNDAPURAM TALUK, PIN-680121.IRINJALAKKUDA ADV. SRI. S EASWARAN FOR R1 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.885 of 2010 --------------------------------------- Dated this 26th day of November, 2010 JUDGMENT Respondent No.1 appears through counsel. 2. Prayer in this petition is to set aside Ext.P8, order refusing to remove O.S.No.319 of 2006 from trial in the list and to defer trial of that suit till decision of Ext.P7, review petition filed before the Debt Recovery Tribunal (for short, “the DRT”). O.S.No.319 of 2006 was filed by respondent No.1 to set aside sale deed Nos.4258 of 2005, 69 of 2006 and 2744 of 2007 executed by petitioner No.1 in favour of his wife, petitioner No.2 and by the latter to respondent Nos.2 and 3. According to respondent No.1, amount was due to it from respondent No.1 as per a loan transaction and for recovery of the said amount respondent No.1 filed O.S.No.427 of 1993 and got a favourable decree. During the pendancy of O.S.No.427 of 1993 there was an application for attachment of the suit property but, no order was passed, according to respondent No.1 in view of an undertaking made by petitioner No.1 that the property will not be sold. Respondent No.1 alleged that to defeat execution of the decree petitioner No.1 assigned the property in favour of petitioner No.2 who then O.P(C).No.885 of 2010 : 2 : assigned it in favour of respondent Nos.2 and 3 and hence the prayer to set aside the said documents as fraudulent. In the meantime petitioner No.1 filed application for review before the DRT for reduction of rate of interest. According to the petitioners, if that review petition is allowed and the rate of interest is reduced no further amount would be due to respondent No.1 in which case setting aside the documents as prayed for in O.S.No.319 of 2006 is not required. In the circumstances, petitioner filed Ext.P8, application to remove O.S.No.319 of 2006 from the list. That was disallowed by the impugned order. Learned counsel submits that in the circumstances, it is only proper that trial of O.S.No.319 of 2006 is adjourned. Learned counsel for respondent No.1 submits that the order condoning the delay in filing the review petition is under challenge in this court and even if review is allowed and a re-calculation of the amount due to respondent No.1 in O.S.No.427 of 1993 is made, still, further amount is due from respondent No.1. 3. There is nothing on record before me to show that if the review is allowed entire liability of petitioner No.1 will be wiped off. If any further amount is due to respondent No.1 in O.S.No.427 of 1993 and if the assertions made by respondent No.1 in O.S.No.319 of 2006 is correct and sufficient for grant of relief prayed for in O.S.No.319 of 2006 there is no necessity to wait for O.P(C).No.885 of 2010 : 3 : orders on the application for review pending before the DRT. Even otherwise, on the facts and circumstances of the case I do not find reason to direct postponing trial of the suit of the year, 2006 or interfere with the order dismissing Ext.P8, application. This petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-