IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 OP(C).NO. 143 OF 2010(O) -------------------------------------- OS.851/2003 OF II ADDL.SUB COURT,THRISSUR .................... PETITIONER: -------------------- GEORGE, AGED 68, PELLISSERY HOUSE, S/O.ANTONY, AMMADAM DESOM, PARALAM VILLAGE, THRISSUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S): ------------------------- POORAM KURIES (P) LTD., POST OFFICE ROAD, THRISSUR-680 001. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) NO.143 of 2010 ==================================== Dated this the 04th day of October, 2010 J U D G M E N T Judgment debtor No.2 in E.P. No.390 of 2007 in O.S. No.851 of 2003 of the court of learned Sub Judge, Thrissur is the petitioner before me. Respondent obtained a decree for money and property of petitioner was sold in auction on 19.11.2009. Petitioner filed application under Order XXI Rule 90 of the Code of Civil Procedure (for short, “the Code”) to set aside the sale on various grounds stated therein. Grievance of petitioner is that even during pendency of that application learned Sub Judge has confirmed the sale against the proviso to Rule 92(1) of Order XXI of the Code. It is argued by learned counsel that during the pendency of that application execution petition was closed. Hence this Original Petition. 2. Learned counsel confirmed that E.A.No.110 of 2010 filed by petitioner under Rule 90 of Order XXI of the Code is pending consideration of learned Sub Judge and that it was in the meantime that execution petition was closed. Though the execution petition is closed it does not affect maintainability of E.A.No.110 of 2010. Decision in Gopalakrishna Kamath v. O.P(C) No.143 of 2010 -: 2 :- R.Bhaskara Rao (1988 [2] KLJ 238) is supportive of that view. Hence notwithstanding the closure of execution petition it is open to the petitioner to proceed with E.A. No.110 of 2010. 3. It is seen from the proviso to Rule 92(1) of Order XXI of the Code that when an application for setting aside the sale is pending, the sale shall not be confirmed. That is because confirmation of sale shall be ordered only after disposal of the application to set aside the sale. That sale has been confirmed does not affect maintainability of E.A. No.110 of 2010. If pursuant to the confirmation of sale executing court is taking steps for issue of sale certificate or allied matter it is open to the petitioner to seek stay of such proceeding in the executing court if he is otherwise entitled as provided under law. With the above observation Original Petition is closed. THOMAS P. JOSEPH, JUDGE. vsv