IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 WP(C).No. 1204 of 2008(R) ------------------------- AGAINST THE ORDER DATED 07/11/2007 IN EA.96/2005 IN EP.172/2002 of SUB COURT, CHERTHALA .................... PETITIONER: ------------ 1. DURGA BAI, AGED YEARS, W/O.E.M.DINESAN, IDATHODATHU HOUSE, WARD NO.12, MAYITHARA P.O., CHERTHALA, ALAPPUZHA DISTRICT. 2. E.M.DINESAN, AGED 52 YEARS, S/O.MADHAVAN, IDATHODATHU HOUSE, WARD NO.12, MAYITHARA P.O., CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.K.RAMANATHAN RESPONDENTS: ------------- CHERTHALA SOUTH SERVICE CO-OPERATIVE BANK LTD. NO.1344, REPRESENTED BY ITS SECRETARY, CHERTHALA, ALAPPUZHA DISTRICT 688 524. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 1204 OF 2008 --------------------- Dated this the 10th day of January, 2008 JUDGMENT This writ petition is preferred against the order of the Subordinate Judge, Cherthala in EA 96/05 in EP 172/02 in File 2792/99. It is an application filed by the judgment debtors to set aside the sale. A perusal of the facts extracted by the court below itself would reveal that there is an averment by the judgment debtor that decree scheduled property is not attached in execution proceedings and therefore the property is not liable to be sold. Unfortunately, the court below has not considered that aspect at all. It is a point that requires consideration because there are decisions to the effect that absence of attachment may be deemed to be a material irregularity in publishing the sale. The court can consider whether it is an irregularity and even if it is an irregularity whether it has gone into the root of the matter and whether such an irregularity can be considered under Order XXI Rule 90 CPC. 2. On a perusal of the entire judgment, I feel that the court below has to bestow its attention to the relevant materials regarding WPC NO 1204/08 2 material irregularity or fraud and then arrive at a decision. It appears that the question of attachment has not been argued before the court below for that reason we do not find any discussion regarding the lack of attachment in the judgment. But since it is a matter that has been raised in the pleadings and as a question of law as well as a question of fact, I feel interference is necessary. Therefore, the order under challenge is set aside and the matter is remitted back to the court below for fresh consideration. Since I am setting aside the order and remanding the matter, both parties are permitted to adduce both documentary and oral evidence in support of their respective contentions and the court below is directed to dispose of the matter in accordance with law. Since I am disposing the case at the admission stage, the court below shall give notice to the counsel for the decree holder, fix up a date for hearing and then dispose of the same. The writ petitioners are directed to appear before the court below on 22.2.08. M.N.KRISHNAN, JUDGE vps WPC NO 1204/08 3