IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 WP(C).NO. 2983 OF 2010(O) ---------------------------------------- AGAINST THE ORDER DATED 28/07/2009 IN EP.31/07 IN OS.458/2000 OF PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER(S): ----------------------- AMBIKA KUMARI AMMA, KARTHIKA HOUSE, EDAVANASSERI MURI, MYNAGAPPALLY VILLAGE, KUNNATHUR TALUK, KOLLAM DISTRICT. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): ------------------------ GOPALAKRISHNA PILLAI, ASHA BHAVAN, EDAVANASSERI, MYNAGAPPALLY VILLAGE, KUNNATHUR TALUK, KOLLAM DISTRICT. ADV. SRI.PRATHEESH.P FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) NO.2983 OF 2010 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 A TRUE PHOTOCOPY OF THE EXECUTION PETITION NO.31/2007 FILED BY THE RESPONDENT. EXHIBIT P2 A TRUE COPY OF THE PROCLAMATION SCHEDULE DATED 9.7.2009 FOR THE SALE OF PROPERTIES. EXHIBIT P3 A TRUE PHOTOCOPY OF THE SALE KAICHEET ALONG WITH THE SCHEDULE OF PROPERTIES. EXHIBIT P4 A TRUE PHOTOCOPY OF THE REPORT OF THE AMEEN DATED 27.7.2009. EXHIBIT P5 A TRUE PHOTOCOPY OF THE SAID PETITION DATED 17.8.2009 EXHIBIT P6 A TRUE PHOTOCOPY OF THE ORDER OF THE SUB COURT, KOLLAM DATED 28.9.2009. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== W.P(C) No.2983 of 2010 ==================================== Dated this the 19th day of July, 2011 J U D G M E N T Petitioner is the judgment debtor in E.P. No.31 of 2007 in O.S. No.458 of 2000 of the court of learned Principal Sub Judge, Kollam. Respondent-decree holder obtained a decree for money against petitioner and put the decree in execution. Respondent brought the property of petitioner for sale and it was sold. Petitioner filed E.A. No. 424 of 2009 in the execution petition to set aside the sale on various grounds. While so, learned Sub Judge on July 28, 2009 passed Ext.P6, order that “Sale conducted. Report filed. For confirmation to 29.9.2009”. Exhibits P2 to P4 are under challenge. In the meantime this Court passed interim order of stay on February 10, 2010 for a period of one month on condition of petitioner depositing Rupees two lakhs in the executing court. It is submitted that the said condition is complied. I have heard learned counsel for respondent also. 2. Exhibit P2 is the proclamation for sale under Order XXI, Rule 66 of the Code of Civil Procedure (for short, “the Code”). Exhibit P3 is the Kaichit prepared by the Amin on July 27, 2009 for W.P(C) No.2983 of 2010 -: 2 :- sale of the property on the said day. Exhibit P4 is a report prepared by the Amin stating that the property was purchased by the counsel for respondent-decree holder. 3. It is seen that petitioner has preferred Ext.P5, application (E.A.No.424 of 2009) which in effect is to set aside the sale for reasons stated therein. Counsel on both sides told me that E.A. No.424 of 2009 is not so far disposed and that it is in the meantime that executing court has passed Ext.P6, order, “Sale conducted. Report filed. For confirmation to 29.9.2009”. 4. If before confirmation of sale an application to set aside sale is filed, the sale could be confirmed only after disposal of the said application. Hence if E.A.No.424 of 2009 is pending, necessarily executing court has to dispose of the same. Without setting aside the sale Exts.P2 to P4 cannot be set aside or interfered with. Resultantly, this Writ Petition is disposed of in the following lines: (a) In case E.A.No.424 of 2009 in E.P. No.31 of 2007 in O.S. No.458 of 2000 of the court of learned Principal Sub Judge, Kollam is not so far disposed of, learned Sub Judge shall dispose of the same as early as possible having W.P(C) No.2983 of 2010 -: 3 :- regard to the facts and circumstances of the case. (b) If E.A. No.424 of 2009 is not so far disposed of, confirmation of sale shall depend upon the result of the decision in the said E.A. THOMAS P. JOSEPH, JUDGE. vsv