IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 W P(C).No. 2578 of 2009(F) CMA.16/2008 of SUB COURT, HOSDRUG OS.107/2006 of MUNSIFF COURT, HOSDRUG PETITIONER: --------------- P.V. SHAKUNTHALA, D/O. LAKSHMI, RESIDING AT PUTHIYAPARAMB HOUSE, HOSDURG KADAPPURAM, HOSDURG VILLAGE, POST KANHANGAD, KASARGOD DIST. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENTS: --------------- 1. H.N. GURUDATH, AGED 61 YEARS, S/O. NAGAPPA, PRASAD HOUSE, AVIYIL HOUSE, POST KANHANGAD, KASARGOD DIST. 2. GURUPRASAD, AGED 25 YEARS, S/O.HN GURUDATH, PRASAD HOUSE, AVIYIL HOUSE, POST KANHANGAD, KASARGOD DIST. R2 BY ADV. SRI.KODOTH SREEDHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF EA.NO.321/2006 AND THE ORDER DATED 5/1/2007 THEREON. EXT.P2 TRUE COPY OF THE ORDER DATED 8/1/2008 DISMISSING E.A.NO.338/2007. EXT.P3 TRUE COPY OF THE JUDGMENT DATED 27.8.2008 OF THIS COURT IN WP(C) NO.25759 OF 2008. EXT.P4 TRUE COPY OF THE CMA NO.16/2008 BEFORE THE SUBORDINATE JUDGES COURT. EXT.P5 TRUE COPY OF I.A.NO.782 OF 2008. EXT.P6 TRUE COPY OF I.A.NO.783 OF 2008. EXT.P7 TRUE COPY OF THE ORDER DATED 10/12/2008 IN E.A.NO.644/2008. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 2578 OF 2009 F ------------------------------------------------------ Dated this the 11th March , 2009 JUDGMENT The petitioner is the judgment debtor in O.S.No.107 of 2006, Munsiff's Court, Hosdurg. A money decree was passed against her. In execution of the money decree, the residential property belonged to the petitioner was sold in court auction. The petitioner filed an application under Order XXI Rule 90 of the Code of Civil Procedure. That application was dismissed as per Ext.P2 order dated 8.1.2008. The petitioner filed Ext.P4 Appeal (C.M.A.No.16 of 2008) challenging the order passed by the executing court dismissing the application under Order XXI Rule 90 of the Code of Civil Procedure. C.M.A.No.16 of 2008 is pending. There was a delay of 262 days in filing C.M.A.No.16 of 2008. I.A.No.782 of 2008 was filed by the petitioner to condone the delay. The petitioner submits that though service of notice is complete in I.A.No.783 of 2008, the court below has not disposed of the application for condonation of delay and this has caused great prejudice to her, since the execution proceedings are being proceeded with at the instance of the auction purchaser, who is none other than the son of the decree holder. W.P.(C) NO.2578 OF 2009 :: 2 :: 2. The application for condonation of delay in filing C.M.A.No.16 of 2008 was filed on 24.10.2008. If the delay is not condoned, the appellate court would not be in a position to grant any stay. At the same time, the execution proceedings are proceeded with for delivery of the property. It is to be noted that the auction purchaser is none other than the son of the decree holder. The property to be delivered is the residential house belonging to the petitioner. Appeal is a continuation of the proceedings under Order XXI Rule 90 of the Code of Civil Procedure. If the delay is condoned, naturally, the appellate court may be inclined to grant stay, the Appeal being continuation of the proceedings under Rule 90 of Order XXI. Only because of the fact that there is delay, the execution proceedings are proceeded with, submits the counsel. 3. The Writ Petition was admitted on 23.1.2009. An interim order adjourning delivery of the property was granted. The interim order was thereafter extended. 4. In the facts and circumstances of the case, I am of the view that interests of justice would be met by directing the Subordinate W.P.(C) NO.2578 OF 2009 :: 3 :: Judge's Court, Hosdurg to dispose of I.A.No.782 of 2008 in C.M.A.No.16 of 2008 as expeditiously as possible and, at any rate, before 31.3.2009. Till then the execution proceedings in E.P.No.364 of 2008, Munsiff's Court, Hosdurg, shall be kept in abeyance. The Writ Petition is disposed of as above. (K.T.SANKARAN) Judge ahz/