IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 OP(C).No. 3577 of 2011(O) ------------------------- ARC.294/2006 of MUNSIFF-MAGISTRATE COURT, PONNANI .................... JUDGMENT DEBTOR: ------------------------------------ SARADA, D/O.THAMI, ADARASSERI PARAMBIL KUTTIPPALA, P.O.VATTAMKULAM, PIN-679 578. BY ADV. SRI.RANJITH XAVIER RESPONDENT(S): --------------- 1. SECRETARY, VATTAMKULAM SERVICE CO-OPERATIVE BANK, P.O.VATTAMKULAM, PIN-679 578. 2. MR.IBRAHIM, S/O.KUNJI MOHAMMED IKKOORATHU VALAPPIL HOUSE, NEDUVATTOM, SUKAPURAM P.O., EDAPPAL, PIN-679 308. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER(S)' EXHIBITS: EXHIBIT P1 THE TRUE COPY OF EXECUTION FOR DELIVERY E.P. NO.194 OF 2010 IN A.R.C. NO.294 OF 2006 ON THE FILES OF MUNSIFF- MAGISTRATE COURT, PONNANI. EXHIBIT P2 THE TRUE COPY OF THE JUDGMENT OF THIS COURT IN WP(C)NO.26038/2010 DATED 01.09.2011 EXHIBIT P3 THE TRUE COPY OF CMA NO.35/2011 PREFERRED BEFORE THE DISTRICT COURT, MANJERI EXHIBIT P4 THE TRUE COPY OF EA NO.810/2011 FOR CONDONATION OF DELAY BEFORE THE DISTRICT COURT, MANJERI EXHIBIT P5 THE TRUE COPY OF THE UNNUMBERED STAY APPLICATION IN CMA NO.35/2011 BEFORE THE DISTRICT COURT, MANJERI EXHIBIT P6 THE TRUE COPY OF THE UNNUMBERED INTERIM APPLICATION FOR IMPLEADING THE SECOND RESPONDENT/AUCTION PURCHASER IN CMA NO.35/2011 PENDING BEFORE THE DISTRICT COURT, MANJERI EXHIBIT P7 THE TYPEWRITTEN EXTRACT OF THE ORDER DATED 31.10.2011 OF MUNSIFF-MAGISTRATE COURT, PONNANI IN EP NO.194/2010 IN ARC NO.294/2006 RESPONDENT(S)' EXHIBITS: NIL True copy P.S. To Judge THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3577 of 2011 ==================================== Dated this the 04th day of November, 2011 J U D G M E N T Notice to the respondents is dispensed with in view of the judgment I propose to pass in this Petition. 2. Petitioner is the judgment debtor in E.P. No.194 of 2010 of the court of learned Munsiff-Magistrate, Ponnani where the award passed in A.R.C. No.294 of 2006 was being executed. For realization of the amount due, property of petitioner was sold in E.P. No.513 of 2007 and purchased by the second respondent. Petitioner filed application under Rule 90 of Order XXI of the Code of Civil Procedure (for short, “the Code”) to set aside the sale on various grounds. That application was dismissed. Petitioner challenged that order in W.P(C) No.26038 of 2010. This Court disposed of that Writ Petition observing that remedy of petitioner lies under Order XLIII, Rule 1(j) of the Code. Thereafter petitioner filed C.M.A. No.35 of 2011 in the court of learned District Judge, Manjeri with applications to condone the delay and stay of further proceedings in E.P. No.194 of 2010. In the meantime the O.P(C) No.3577 of 2011 -: 2 :- executing court ordered delivery of the property. 3. Learned counsel for petitioner tells me that till this day delivery of property has not been effected. It is also the submission of learned counsel that the delay in filing C.M.A. No.35 of 2011 has already been condoned and that the application for stay is posted for hearing on 17.11.2011. Learned counsel requests that delivery proceedings may be stayed until disposal of the C.M. Appeal. 4. Since this Court disposed of W.P(C) No.26038 of 2010 without prejudice to the right of petitioner to challenge the order dismissing the application filed under Rule 90 of Order XXI of the Code by way of appeal and pursuant to that, petitioner has filed C.M.A. No.35 of 2011 and requested for stay of execution proceedings and that application is coming up for hearing on 17.11.2011, I am inclined to think that delivery proceedings could remain in abeyance for sometime, otherwise the application for stay itself would become infructuous. 5. In the circumstances it is directed that proceedings for delivery of property in E.P. No.194 of 2010 in A.R.C. No.294 of 2006 of the court of learned Munsiff-Magistrate, Ponnani (if delivery of property has not already been effected) will stand in O.P(C) No.3577 of 2011 -: 3 :- abeyance till 17.11.2011 or till learned District Judge dispose of the application for stay in C.M.A. No.35 of 2011, whichever is earlier. Learned District Judge, Manjeri is directed to dispose of the application for stay preferred by the petitioner in C.M.A. No.35 of 2011 untrammelled by any observation contained in this judgment, on the merit of the case after hearing respondent as well. I also make it clear that this Court has not considered the merit of the application for stay made in C.M.A. No.35 of 2011. It is open to any of the parties in C.M.A. No.35 of 2011 to request learned District Judge advance the hearing of the appeal/application for stay and if any such request is made, learned District Judge shall consider that request and pass appropriate orders having regard to the urgency of the matter. Original Petition is disposed of with the above directions. THOMAS P. JOSEPH, JUDGE. vsv