IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 WP(C).NO. 21988 OF 2010(O) ---------------------------------------- OS.6/1999 OF SUB COURT,NEYYATTINKARA .................... PETITIONER(S): ---------------------- P.CHRISTUDAS, S/O. PONNU NADAR, KRIPA BHAVAN, KARIKKOTHUKUZHI, CHEMBOOR, OTTASEKHARA MANGALAM P.O.,NEYYATTINKARA TALUK. BY ADV. SRI.G.SUDHEER RESPONDENT(S): ------------------------ C.JOHNSON, S/O.P.CHELLAPPAN, JITHALAYAM, KALAYIL, OTTASEKHARAMANGALAM P.O., NEYYATTINKARA TLAUK.PIN-695505. ADV. SRI.R.T.PRADEEP FOR R1 SRI.V.VIJULAL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 TRUE COPY OF THE E.P. NO.63 OF 2002 IN O.S.NO.6 OF 1999 FILED BY THE DECREE HOLDER BEFORE THE SUB COURT, NEYYATTINKARA DATED 9.9.2002. EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN W.P(C) NO.5242 OF 2009 DATED 4.3.2009 OF THIS HONOURABLE COURT. EXHIBIT P3 TRUE COPY OF THE PROCLAMATION ISSUED BY THE SUB JUDGE, NEYYATTINKARA IN E.P. NO.63 OF 2002 IN O.S. NO.6 OF 1999 DATED 13.3.2009. EXHIBIT P4 TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER/JD DATED 21.3.2009 BEFORE THE SUB JUDGE, NEYYATTTINKARA IN E.P. NO.63 OF 2002 IN O.S. NO.6 OF 1999. EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN W.P(C)9994 OF 2009 DATED 30.3.2009 OF THIS HONOURABLE COURT. EXHIBIT P6 TRUE COPY OF THE PETITION FILED BY THE PETITIONER IN E.P. NO.163 OF 2002 IN O.S. NO.6 OF 1999 DATED 23.5.2009 BEFORE THE SUB JUDGE, NEYYATTINKARA. EXHIBIT P7 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN E.P. NO.163 OF 2002 IN O.S. NO.6 OF 1999 DATED 22.6.2009. EXHIBTI P8 TRUE COPY OF THE PETITION FILED BY THE PETITIONER IN E.P. NO.163 OF 2002 IN O.S. NO.6 OF 1999 DATED 20.7.2009. EXHIBIT P9 TRUE COPY OF THE OBJECTION SUBMITTED BY THE RESPONDENT/DECREE HOLDER DATED 27.5.2009 BEFORE THE SUB JUDGE, NEYYATTINKARA. EXHIBIT P10 TRUE COPY OF THE COMMON ORDER IN E.A. NO.111 OF 2009 AND E.A. NO.218 OF 2009 IN E.P. NO.63 OF 2002 IN O.S. NO.6 OF 1999 PASSED BY THE SUB JUDGE, NEYYATTINKARA. EXHIBIT P11 TRUE COPY OF THE ORDER IN E.P. NO.63 OF 2002 IN O.S. NO.6 OF 1999 BY THE SUB JUDGE, NEYYATTINKARA DATED 17.2.2010. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.21988 of 2010 ==================================== Dated this the 28th day of October, 2010 J U D G M E N T Judgment debtor in E.P. No.63 of 2002 in O.S. No.6 of 1999 of the court of learned Sub Judge, Neyyattinkara is the petitioner before me challenging Ext.P10, order to the extent it concerned dismissal of E.A. Nos.111 and 218 of 2009 and Ext.P11, order confirming the sale consequently. Respondent obtained a decree for recovery of money against petitioner and that decree was put into execution. In execution eight cents belonging to the petitioner was brought up for sale and then there was an understanding between the parties as per which respondent agreed to exclude two cents and portion of the building situated therein where petitioner is residing from the proclamation schedule. In the meantime petitioner paid Rs.1,36,500/- to the decree holder towards the amount due under the decree. Property excluding the said two cents and portion of the residential building in it was sold in court auction for Rs.2,62,972/- and purchased by the decree holder. Petitioner filed E.A. No.111 of 2009 to set aside the court auction sale and E.A. No.211 of 2009 to appoint an Advocate W.P(C) No.21988 of 2010 -: 2 :- Commissioner for a report claiming that the property sold in auction takes in a portion of the excluded two cents as well. Executing Court vide Ext.P10, common order dismissed both the petitions. Consequent to the dismissal of the petitions the sale was confirmed as per Ext.P11, order and the execution petition was closed. Hence this Writ Petition. 2. Though various contentions are raised by petitioner against the court sale and its confirmation parties have now reached an agreement as per which petitioner is to pay Rs.4,25,000/- to the respondent within a period of three weeks from this day. Respondent agrees that on such payment the court sale can be set aside. In the light of the above agreement this Writ Petition is being disposed of without going into the merit of the case. Resultantly, this Writ Petition is disposed of in the following lines: (i) Writ Petition will stand allowed and Ext.P10, order to the extent it concerned E.A. No.111 of 2009 in E.P. No.63 of 2002 in O.S. No.6 of 1999 of W.P(C) No.21988 of 2010 -: 3 :- the court of learned Sub Judge, Neyyattinkara set aside and E.A. No.111 of 2009 allowed on condition that petitioner deposited in the executing court for payment to the respondent Rs.4,25,000/- (Rupees Four lakhs and twenty five thousand only) within three weeks from this day. (ii) On such deposit the court auction sale held on 31.03.2009, confirmation of that sale and the sale certificate issued to the respondent will stand set aside and cancelled. (iii) In case condition No.(i) is not complied by petitioner within the stipulated time this Writ Petition will stand dismissed in confirmation of the impugned orders. THOMAS P. JOSEPH, JUDGE. vsv