IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 CRP.No. 342 of 2009() --------------------- AGAINST ORDER IN EA.243/08 IN EA.281/07 IN EP.22/2006 of SUB COURT,KATTAPPANA .................... REVN. PETITIONER: CLAIMANT ---------------------------------------------- SEBASTIAN, S/O. AUGUSTHY, AGED 45 YEARS, RESIDING AT ILLICKAL HOUSE, VALIYAKANDAM KARA, KATTAPPANA VILLAGE. BY ADV. SRI.C.K.PAVITHRAN SRI.M.X.XAVIER RESPONDENTS: DECREE HOLDER & JUDGMENT DEBTOR ---------------------------------------------------------------------------------- 1. FEDERAL BANK LTD., REPRESENTED BY BRANCH MANAGER. 2. E.R.RAVEENDRAN, S/O. RAMALINGAM, ELAVINTHACKAL HOUSE, KATTAPPANA KARA, KATTAPPANA VILLAGE. 3. VIJAYAMMA, W/O. RAVEENDRAN, ELAVINTHACKAL HOUSE, KATTAPPANA KARA, KATTAPPANA VILLAGE. 4. ASHOK RAVEENDRAN, S/O. RAVEENDRAN, ELAVINTHACKAL HOUSE, KATTAPPANA KARA, KATTAPPANA VILLAGE. ADV. SRI.MOHAN JACOB GEORGE FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/11/2011, THE COURT ON 30/11/2011 PASSED THE FOLLOWING: M.L.JOSEPH FRANCIS J., - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No.342 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of November, 2011 ORDER This C.R.P. is filed by the petitioner in E.A. No.243 of 2008 in E.A. No. 281 of 2007 in E.P. No.22 of 2006 on the file of Sub Court, Kattappana. Respondents 1 to 4 herein are the respondents 1 to 4 in that E.A. No.243 of 2008 which was filed by the petitioner, who is a third party to the decree under Order 21 Rule 97(1) of Code of Civil Procedure. 2. The facts of the case are briefly as follows. The revision petitioner is absolute owner in possession of 7.5 cents of land in Re.Sy. No.189/3 of Kattappana Village. He got title over the property as per settlement deed No.2823 of 2003 of Sub Registry Office, Kattappana. The 1st respondent bank obtained a decree against respondents 2 to 4 charging over their property. The said C.R.P. No.342 of 2009 :2: property was sold in auction which was purchased by the decree holder bank. Sale certificate was also issued in favour of the purchaser/decree holder. 3. The 1st respondent bank filed E.A. No. 281 of 2007 for delivery of the property covered by the sale certificate. The execution Court deputed an Amin to deliver the property measuring and demarcating the same. After surveying the property, it was reported by the Amin that the property covered by the sale certificate was encroached on the northern side by the petitioner and on the western side by another person. In fact the Amin measured the property on the northern side extending into the revision petitioner's property. The said petitioner had no notice regarding the survey. Amin entered inside his property and carried out measurement without his permission. The petitioner came to understand that the measurement was encroaching upon his property. In these circumstances, the petitioner filed E.A. No.243 of 2008 praying for setting aside the sale and the certificate issued there under to the extent of the petitioner's property. 4. The learned Sub Judge on considering the matter found C.R.P. No.342 of 2009 :3: that the grievance of the petitioner can be resolved by measuring out his 7.5 cents of land left undisturbed for the delivery of the property covered by Ext.B1 sale certificate issued by the Court in favour of the decree holder and that the prayer of the petitioner to set aside the sale conducted by the Court cannot be granted and that E.A. was closed with the above observations. Against that order the petitioner in E.A. No.243 of 2008 filed this C.R.P. 5. Heard learned counsel for the revision petitioner and learned counsel for the contesting first respondent. 6. Learned counsel for the revision petitioner submitted that the Court below failed to note that while effecting delivery, Amin is expected to deliver the property based on the schedule in the sale certificate. Hence, closure of petitioner's application without proper adjudication will lead to miscarriage of justice. Learned counsel for the first respondent submitted that the first respondent has no objection in measuring out the property of the revision petitioner on the basis of Ext.A1 document first and thereafter measuring the property covered by Ext.B1 sale certificate and deliver the property available to the first respondent decree holder. If an order based on C.R.P. No.342 of 2009 :4: the above statement of first respondent is granted, grievance of the revision petitioner can be resolved. In that circumstances, the finding of the Sub Court that prayer of the revision petitioner to set aside the sale conducted by the Court cannot be granted need not be interfered with. 7. Accordingly this C.R.P. is allowed in part. The order in E.A. No. 243 of 2008 dated 28.5.2009 closing that E.A. is set aside and the Sub Court, Kattappana is directed to give direction to the Amin to measure the property of the revision petitioner covered by Ext.A1 document first with the help of the Taluk Surveyor and thereafter measure out the available extent of property covered by Ext.B1 sale certificate and give delivery of that available extent to the first respondent/decree holder. There is no order as to costs. M. L. JOSEPH FRANCIS, (JUDGE) dl/