IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 OP(C).No. 3094 of 2011(O) ------------------------- AGAINST THE ORDER DATED 29/08/2011 IN EA 129/2010 IN E.P.NO.33/1988 IN OS.263/1983 of SUB COURT, CHERTHALA .................... PETITIONER: -------------------- KUTTIYAMMU, S/O. MOOSA, AGED 48 YEARS, RESIDING AT ASARIPARAMBIL HOUSE, CHANDIROOR MURI, AROOR VILLAGE, CHERTHALA, ALAPPUZHA. BY ADV. SRI.SABU GEORGE RESPONDENT(S): ---------------------------- 1. STATE BANK OF TRAVANCORE, M.G.ROAD BRANCH, ERNAKULAM, REPRESENTED BY ITS BRANCH MANAGER. PIN-682 035. 2. ISHA ALI, AGED 43 YEARS, RESIDING AT ASARIPARAMBIL HOUSE, CHANDIROOR MURI, AROOR VILLAGE, CHERTHALA, ALAPPUZHA-688 534. 3. SAINABA RIYAS, AGED 39 YEARS, RESIDING AT ASARIPARAMBIL HOUSE, CHANDIROOR MURI, AROOR VILLAGE, CHERTHALA, ALAPPUZHA-688 534. R1 BY ADV. SRI. SATHISH NINAN, SC, SBT THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/09/2011 ALONG WITH OPC.NO.3123 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.3094/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF E.A.350/2008 IN E.P.33/1988 IN O.S.263/1983 BEFORE THE SUB COURT, CHERTHALA. P2: COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT. P3: COPYOF THE E.A.NO.129/2010 IN E.A.350/2008 IN E.P.NO.33/1988 IN O.S.263/1983 BEFORE THE SUB COURT, CHERTHALA. P4: COPY OF THE ORDER IN E.A.NO.129/2010 DTD. 29/08/2011. P5: COPY OF THE LETTER SHOWING THE REMITTANCE MADE TO KFC DTD. 25/12/2008. P6: COPY OF THE LETTER ISSUED BY THE SENIOR MANAGER, CATHOLIC SYRIAN BANK TO ITS COUNSEL AT ALAPPUZHA DTD.3/8/2011. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) Nos.3094 of 2011 & 3123 of 2011 -------------------------------------- Dated this the 29th day of September, 2011. JUDGMENT These Original Petitions are in challenge of confirmation of sale of property in E.P.No.33 of 1988 in O.S.No.263 of 1983 of the court of learned Sub Judge, Cherthala. 1st respondent obtained a decree for recovery of money against one Mohammed Haji and others by sale of the mortgaged property. In the course of execution, the said Mohammed Haji expired and some of his legal representatives (including the father of petitioner in O.P.(C) No.3094 of 2011) were impleaded and the execution proceedings proceeded. 1st respondent/decree holder purchased the property in court auction. The father of petitioner in O.P.(C) No.3094 of 2011 filed an application to set aside the sale. That application was dismissed. While so, the father of petitioner in O.P.(C) No.3094 of 2011 expired on 17.03.2007. The challenge to the dismissal of the application to set aside the sale in the C.M.Appeal also failed. Later petitioner in O.P.(C) No.3094 of 2011 filed an application under Section 47 of the Code of Civil Procedure alleging irregularity in publishing and conducting the sale. That application was dismissed. That was followed by Ext.P3, application filed by the petitioner in O.P.(C) No.3094 of 2011 to review the said order. The said application was dismissed by Ext.P4, order which is under challenge in O.P.(C) No.3094 of 2011. OP(C) Nos.3094 & 3123/2011 2 2. O.P.(C) No.3123 of 2011 is filed by the son of the late Fathima, daughter of the late Mohammed Haji (one of the judgment debtors). Grievance of petitioner in O.P.(C) No.3123 of 2011 is that consequent to the death of Mohammed Haji and the death of his daughter – Fathima (mother of petitioner) he was not impleaded as a party in the execution proceeding and hence the sale is invalid. 3. 1st respondent appeared through standing counsel. Since other respondents in the Original Petitions are the other judgment debtors and in view of the decision I propose to take, it is not necessary to issue notice to respondent No.2 onwards in these Original Petitions. 4. So far the contention raised in O.P.(C) No.3123 of 2011 is concerned, that has to be repelled. For, it is not disputed that some of the legal representatives of the late Mohammed Haji, (one of judgment debtors) were on record in the execution proceeding and it is with them on record that the property of the said Mohammed Haji was brought up for sale and purchased by the 1st respondent. The principle of substantial representation of the estate of the deceased Mohammed Haji would apply. Petitioner in his capacity as legal representative of late Fathima, the daughter of late Mohammed Haji claims to be a legal representative of the late Mohammed Haji. Legal representatives of the late Mohammed Haji take his estate as joint tenants with continuity of title, interest and possession. It is settled position that in such circumstances, if any OP(C) Nos.3094 & 3123/2011 3 of the legal representatives of the deceased is on record, that amounts to substantial representation of the estate. Hence the contentions raised in O.P. (C) No.3123 of 2011 cannot succeed. 5. Learned counsel for petitioners have submitted that they are ready to settle the dispute with the 1st respondent by paying the amount due to it. Learned counsel for 1st respondent after getting instruction has submitted that 1st respondent is ready for settlement if petitioners paid the amount due to it. 6. The execution proceeding was posted to this day for delivery of the property and, by interim order passed in O.P.(C) No.3094 of 2011 it is adjourned to a day after 30.09.2011. 7. Now the parties are agreeable to settle the matter. Since petitioners are prepared to pay the amount due to the 1st respondent and the latter is agreeable to receive the same I am inclined to think that delivery of property can be deferred to a day after one month from 30.09.2011 so that, in the meantime parties can settle the dispute and report the matter in the executing court. Resultantly these Original Petitions are disposed of as follows: OP(C) Nos.3094 & 3123/2011 4 In view of the offer made by petitioners to the 1st respondent to settle dispute - petitioners being willing to pay the amount due to the 1st respondent and the latter being agreeable to receive the same, it is directed that delivery of property in E.P.No.33 of 1988 in O.S.No.263 of 1983 of the court of learned Sub Judge, Cherthala will stand adjourned to a day after one month from 30.09.2011. The other contentions raised by the petitioners in these Original Petitions are rejected. THOMAS P.JOSEPH, Judge. cks