IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 Ex.FA.No. 22 of 2003() ------------------------------- AGAINST THE ORDER DATED 16/12/2002 IN EA.250/02 IN EP.127/87 IN OS.31/1984 of ADDL.SUB COURT, ALAPPUZHA .................... APPELLANT/PETITIONER --------------------------------------- ANIL D.RAJ, SON OF DEVARAJA NAICKEN, VIMALA NIVAS, THIRUVAMPADY, ALLEPPEY. BY ADV. MR.V.G.ARUN MR.T.R.HARIKUMAR RESPONDENTS/CR.PETITIONERS ------------------------------------------------- 1. VIJAYA BANK, ALLEPPEY, REPRESENTED BY ITS MANAGER. 2. SURYA NARAYANA COMPANY, HARDWARE MERCHANTS, NEW BAZAAR, ALLEPPEY. 3. N. DEVARAJA NAICK, PARTNER, SURYA NARAYANAN COMPANY, NEW BAZAAR, ALLEPPEY,RESIDING AT LAKSHMINARAYANA MADOM, PALACE WARD, ALLEPPEY. 4. N.GOPINATHA NAICK OF DO. DO. 5. N.RAVEENDRANATHA NAICK OF DO. 6. N.PURUSHOTHAMA NAICK, OF DO. DO. 7. C.MOHANACHANDRA NAICK OF DO. 8. C.BALACHANDRA NAICK OF DO. P.T.O. Ex.FA.No. 22 of 2003 9. C.PRADEEPKUMAR, LAKSHMINARAYANA MADOM PALACE WARD, ALLEPPEY. 10. LAKSHMI BAI OF DO. 11. SAROJINI BAI OF DO. 12. SURESH OF DO. DO. R1 BY ADV. MR.D.KRISHNA PRASAD, MR.D.NARENDRANATH, MR.M.HARISHARMA , MR.T.P.ELDHOSE. R3 & R8 BY MR.H.B.SHENOY, MR.B.ASHOK SHENOY , SMT.LAKSHMI B.SHENOY , MR.ABU MATHEW, MR.ANIL KURIAN THOMAS , MR.SOBHAN GEORGE. THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N.KRISHNAN, J. ........................................... Ex.F.A.NO.22 OF 2003 ............................................. Dated this the 8th day of October, 2009 J U D G M E N T This is an appeal preferred against the order of the Additional Sub Judge, Alappuzha in E.A.No.250/2002 in E.P.No.127/1987 in O.S.No.31/1984. Vijaya Bank obtained a decree for realisation of the amount and in execution of the decree, attached the property and it is at that juncture the present appellant moved an execution application contending that he is entitled to a share in the property and therefore, the sale cannot be proceeded with. At that time it was brought to the notice of the court that a suit for partition filed by the present appellant as O.S.No.52/1998 which ended in dismissal and therefore, by virtue of the said decision, the claimant is not entitled to claim any right over the property. 2. Now the learned counsel for the appellant on ascertainment submits that an appeal was preferred against such judgment as A.S.No.120/2000 wherein the appellate court had granted a decree for partition : 2 : Ex.F.A.NO.22 OF 2003 declaring the fractional right of the appellant over the property. When it is so, then the matter requires reconsideration by the court below. Mean while, it is also submitted that one time settlement application has been moved and parties are attempting to wipe of the liability. If the liability is totally wiped of, then the question of entertaining the execution application may not arise for the reason that nothing remains to be decided. Therefore, in the light of the latest developments by decreeing the suit for partition, it has become necessary to set aside the order passed by the trial court and therefore, it is set aside and the matter is remitted back to the executing court for a fresh consideration and all the parties are directed to produce sufficient and necessary documents and evidence in support of their respective contentions as well as the fact that whether the decree amount has been wiped of. The parties are directed to appear before the executing court on 20.11.2009. Needless to say that all the questions are left open for decision. Disposed of accordingly. M.N.KRISHNAN, JUDGE cl : 3 : Ex.F.A.NO.22 OF 2003 M.N.KRISHNAN, J. . ........................................ Ex.F.A.NO.22 OF 2003 ........................................ 8th day of October, 2009 J U D G M E N T : 4 : Ex.F.A.NO.22 OF 2003