IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 CRP.No. 279 of 2011() --------------------- C.M.A. NO.112/2008 OF I ADDL. DISTRICT COURT, THIRUVANANTHAPURAM. (EA.203/2006 IN EP.103/2003 IN OS,62/2000 OF THE SUB COURT, NEYYATTINKARA) -------- REVN. PETITIONER/APPELLANT ---------------------------------------------- KERALA STATE CO-OPERATIVE BANK LTD., KARAMANA BRANCH, THIRUVANANTHAPURAM, REP. BY ITS BRANCH MANAGER. BY ADV. SRI.NAGARAJ NARAYANAN,SC,K.S.CO-OP BANK RESPONDENTS/RESPONDENTS -------------------------------------------- 1. JOSE, S/O.NEPOLIAN, PANAYARAKUNNU, VALIYAVILA PUTHEN VEEDU, ANTHIYOOR DESOM, KOTTUKAL VILLAGE, PIN..696606.. 2. SURESH KUMAR.L.S., SURESH BHAVAN, KALLUVILA, VENPAKAL, THIRUVANANTHAPURAM PIN..696321. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: vk THOMAS P.JOSEPH, J. ==================================== C.R.P. No.279 of 2011 ==================================== Dated this the 12th day of August, 2011 O R D E R Petitioner challenges the condition imposed on it by the executing court as confirmed by the leaned First additional District Judge, Thiruvananthapuram. According to the petitioner, property in question was mortgaged to it by the second respondent while availing a loan. Later, the first respondent filed a suit for a decree for specific performance of the agreement and based on a settlement reached between respondents 1 and 2, the suit was decreed and property was sold in auction for recovery of amount allegedly due to the first respondent. Learning about that, petitioner filed E.A. No.203 of 2006 in E.P.No.103 of 2003 in the executing court to set aside the same based on the mortgage. That application (E.A. No.203 of 2006 in E.P. No.103 of 2003 in O.S. No.62 of 2000) was allowed by the executing court subject to the condition of petitioner depositing certain amount. That order was challenged in C.M.A. No.112 of 2008 since petitioner was dissatisfied with the condition imposed. Learned Additional District Judge dismissed the appeal observing in paragraph 3 of the judgment that executing court had allowed the application C.R.P. No.279 of 2011 -: 2 :- conditionally on the submission of counsel on both sides and recorded that petitioner shall deposit Rs.1,48,022/- with 6% interest till the date of deposit and on deposit of the amount the sale will stand set aside. Learned Additional District Judge also observed that the counsel (before the learned District Judge) on both sides submitted that petitioner filed W.P(C) No.35767 of 2007 in this Court against the order of executing court and this Court dismissed the Writ Petition by judgment dated 05.12.2007. 2. Learned counsel submits that petitioner filed W.P(C). No.35767 of 2007 against the order of the executing court imposing condition and that Writ Petition was dismissed by judgment dated 05.12.2007 observing that remedy of petitioner is to challenge the order of the executing court in appeal as provided under Order XLIII Rule 1(ja) of the Code of Civil Procedure and the said decision has nothing to do with the decision of the executing court on merit. It is also submitted by learned counsel that no such consent was made by the learned counsel in the executing court, nor recorded. Learned counsel has given me a copy of the order of executing court on E.A. No.203 of 2006 to support the contention that there was no such consent given by the petitioner for deposit of the amount. C.R.P. No.279 of 2011 -: 3 :- 3. Assuming that there was no such consent given in the executing court on behalf of petitioner and the appellate court has made a wrong observation in its judgment, the proper course is to seek a review of the judgment of the appellate court. This Court cannot in this proceeding say that the statement made by learned District Judge in paragraph 3 of the judgment in C.M.A. No.112 of 2008 is not correct or not. Petitioner has to move for review of the judgment in C.M.A. No.112 of 2008 if it is the contention of petitioner that no consent as referred in paragraph 3 of the judgment of learned District Judge was given by petitioner for deposit of the amount as a condition to set aside the sale. 4. It is pointed out by learned counsel that the appellate court judgment was pronounced on November 24, 2010 and the period for filing review has expired. It is open to the petitioner to bring the relevant circumstances before learned District Judge and request condonatoin of delay, if he is otherwise entitled to that course as provided under Section 5 of the Limitation Act. Appellate court has to look into the question whether there was consent given by petitioner to deposit the amount as a condition to set aside the sale. C.R.P. No.279 of 2011 -: 4 :- 5. Registry is directed to return copy of the judgment of the appellate court produced along with this Petition after retaining its photocopy. With the above observation this Revision Petition is closed. All pending Interlocutory Applications will stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv