IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 WP(C).No. 22254 of 2009(B) -------------------------- PETITIONER(S): ------------------ K.K.RADHAKRISHNAN, S/O.MADHAVI, AGED 49 YEARS, KARUKULANGARA HOUSE, PALAPPURAM P.O., OTTAPALAM. BY ADV. SRI.SANTHEEP ANKARATH SMT.P.JAYALAKSHMI RESPONDENT(S): ------------------- 1. OTTAPALAM CO-OPERATIVE URBAN BANK LIMITED, REPRESENTED BY ITS SECRETARY, OTTAPALAM. 2. SPECIAL SALE OFFICER, OTTAPALAM CO-OPERATIVE URBAN BANK LIMITED, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES (G), OTTAPALAM. 3. SREEKUMAR, S/O.MADHAVI, KARAKULANGARA HOUSE, PALAPPURAM P.O., OTTAPALAM. 4. BHANUMATHY, W/O.GOPINATHAN (RETD.CRPF), NAVAKKODE, KODUNTHIRAPPALLY P.O., PALAKKAD. 5. RETNAKUMARI, W/O.SIVAPRAKASH, V.V.VILLA, NEDUNGOTTUR, SHORANUR. 6. RAVUNNI, S/O.MADHAVI, KARAKULANGARA HOUSE, PALAPPURAM P.O., OTTAPALAM. 7. VIJAYALAKSHMI, W/O.SASIDHARAN, MATHASSERY HOUSE, S.R.K.NAGAR, 19TH MILE, OTTAPALAM. GOVT.PLEADER SRI.K.C.SANTHOSH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 22254 OF 2009 (B) ===================== Dated this the 6th day of August, 2009 J U D G M E N T Petitioner submits that his mother availed of loans from the respondent Bank mortgaging an immovable property belonging to her. The property was bequeathed to the petitioner as per a Will. However, default was committed and as a result of which Bank has obtained Ext.P1 award. 2. In the meanwhile, it is stated that challenging the genuineness of the Will under which the petitioner claims title over the property and seeking its partition, the other legal heirs of his deceased mother filed OS 82/08 before the Sub Court, Ottapalam. Petitioner submits that in the meanwhile, as execution proceedings were proceeding, he wanted to save the property by paying the money and therefore, filed IA 749/09 before the Civil Court praying that he be permitted to pay off the debt to the Bank. This application is pending. 3. While so, Bank issued Ext.P2 auction notice scheduling auction of the property on 11/8/2009. At that stage, petitioner filed Ext.P4 revision before the Tribunal along with Ext.P5 WPC 22254/09 :2 : application seeking stay of auction. Orders have not been passed on Ext.P5. In the meanwhile auction will take place and therefore, the writ petition is filed. 4. Ext.P1 award as at present is enforcible and if that be so, the Bank cannot be faulted for the recovery proceedings that is being continued. Therefore, at this stage, petitioner cannot find fault with the Bank in issuing Ext.P2 auction notice. But however, as the petitioner claims ownership of the property under a Will and as the genuineness of the Will is under dispute and as he has filed Ext.P3, IA No.749/09 before the Civil Court, it is only appropriate that the auction is deferred on terms, until the Civil Court passes orders on Ext.P3. 5. Having regard to the above, I dispose of this writ petition with the following directions. (1) That the auction in pursuance to Ext.P2 notice published by the 2nd respondent shall be deferred on condition that the petitioner remits 50% of the amount due. Such remittance shall be made on or before 10th August, 2009. (2) It is directed that the Sub Court, Ottapalam before which OS 82/08 referred to above is pending, in which IA 749/09 WPC 22254/09 :3 : has been filed by the petitioner, shall consider the said application and pass orders thereon with notice to all concerned and as expeditiously as possible, at any rate within 4 weeks of production of a copy of this judgment. (3) It is directed that depending on the orders to be passed and if the petitioner makes payment of the amount due within two weeks of the order, further proceedings pursuant to Ext.P2 will be dropped, and in case payment is not made, it will be open to the Bank to pursue further with the proceedings. (4) Petitioner shall produce a copy of this judgment before respondents 1 and 2 and also before the Sub Court, Ottapalam for compliance. ANTONY DOMINIC, JUDGE Rp