IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 WP(C).No. 5968 of 2008(I) ----------------------------------- AGAINST THE ORDER DATED / / IN EP 326/1987 IN OS.401/1979 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER: ------------------- M/S.VAS PHARMACEUTICALS (INDIA) LTD., COCHIN-19, REPRESENTED BY ITS MANAGING DIRECTOR, VASUDEVAN K.PANDALATH, S/O.KRISHNA PILLAI, THOPPIL ESTATE, VYTTILA, COCHIN-19. BY ADV. SRI.JESWIN P.VARGHESE RESPONDENTS: ------------------------ 1. BANK OF INDIA, REPRESENTED BY THE BRANCH MANAGER, THIRUVANIYUR, ERNAKULAM DIST. 2. M/S.COCHIN RUBBER COMPLEX, REPRESENTED BY ITS MANAGING DIRECTOR, HARIHARA MENON, PADINJARETHOTTUNGAL HOUSE, PALLURUTHY(NORTH), KOCHI. BY SC (R1) - SRI.C.A.JOY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 5968 OF 2008 --------------------- Dated this the 20th day of February, 2008 JUDGMENT This writ petition is filed to quash Ext.P5 sale notice. The writ petitioner is not a party to the execution proceeding pending before the Subordinate Judge, Ernakulam, in EP 326/87 in OS 401/79. Petitioner comes into the picture by virtue of a compromise decree in OS 11/01 whereby the 4th defendant in the suit was directed to execute the document in favour of the petitioner herein. Now, much prior to that, the bank has initiated OS 401/79 for a decree against the persons under whom the writ petitioner is claiming right. It is also seen that the Bank wants to realise the amount by enforcing charge, which they are entitled to. Now a stage has come for sale of the property. It is contended that if the sale is conducted without their juncture, it will cause them embarrassment and irreparable loss and therefore the sale may be deferred. 2. It is true that when the property is charged, that charge will run with the property irrespective of the change of ownership of the property. Therefore, it is contended by the bank that no relief can be claimed in this writ petition. 3. Learned counsel for the writ petitioner submits that petitioner wants to prefer a claim petition before the court below and to proceed with WPC NO 5968/08 2 the matter. Whatever it may be, I feel that if the sale is conducted now unnecessarily the 3rd party also will be dragged into the picture other than the complication which is already available before the court. Therefore, I direct the court below to defer the sale by one month. If the writ petitioner wants to prefer a claim petition, it may file it within a week after giving notice to the counsel for the bank and the court can hear and dispose of the claim petition within one month and thereafter proceed to dispose of the matter in accordance with law. If the present writ petitioner wants to settle the matter with the bank by paying the amount, that also can be negotiated with the bank authorities for a proper decision. I also make it clear that in case the claim petition is to be dismissed, as the sale is adjourned at the instance of these parties, the entitlement to have a fresh proclamation will stand waived. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 5968/08 3 WPC NO 5968/08 4 WPC NO 5968/08 5