IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 WP(C).No. 31233 of 2008(R) -------------------------- AGAINST THE ORDER IN EP.31/2002 IN OS.8/2001 of SUB COURT, OTTAPPALAM .................... PETITIONER(S): ------------------------ P.MOHAMMED, 60 YEARS, S/O.AHEMED KUTTY, PURAKOTTIL HOUSE, NATTUKAL PO., THACHANATTUKARA, MANNARKAD, PALAKKAD DISTRICT. BY ADV. SRI.MATHEW SKARIA RESPONDENT(S): --------------------------- 1. THE CATHOLIC SYRIAN BANK LTD. REP. BY ITS MANAGER, OLAVAKODE BRANCH, PALAKKAD. 2. C.A.UNNIKRISHNAN, S/O.APPUGUPTAN CHEBANPADATH HOUSE, VAKADAPURAM PO., PALAKKAD DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. ------------------------------------------------------------- W.P.(C) NO.31233 OF 2008(R) -------------------------------------------------------------- Dated this the 23rd day of October, 2008 J U D G M E N T Heard both sides. 2. Petitioner is a judgment debtor along with the second respondent in E.P.No.31/2002 in O.S.No.8/2001 of the Sub Court, Ottappalam. First respondent obtained decree for payment of money and attempted to bring the mortgaged property belonging to the petitioner for sale as the amount due under the decree was not paid. Property was sold in auction. Petitioner did not file any application to set aside the sale under Order XXI Rule 72-A or other provisions of the Code of Civil Procedure, (for short, “the Code”). Instead, petitioner filed W.P. (C) No.3012/2007 before this Court challenging the sale on the ground of violation of Order XXI Rule 72 A of the Code in that, according to the petitioner, reserve price was not fixed as required under the said Rule. That writ petition was disposed of W.P.(C) No.31233/2008 - 2 - as per Judgment dated 10-8-2007 granting time to the petitioner to pay off the decree debt. A time limit was also fixed for payment of the amount. Petitioner did neither challenge that judgment nor pay the amount as per the direction and later came up with W.P.(C) No.9789/2008 requesting further time for payment of the amount as directed in the judgment in W.P.(C) No.3012 of 2007. After hearing both sides, petitioner was granted further time for payment of the decree amount. That direction was also not complied with. Petitioner again came up with W.P.(C) No.19129/2008 contending that he has already discharged the decree debt. That claim was objected by the first respondent. This Court as per Judgment dated 25-6-2008 disposed of the writ petition directing that :- “If the amount is not paid as directed in Exhibit P1 Judgment, first respondent/decree holder is entitled to take delivery of the property. On the other hand, if petitioner had not paid the entire amount due, then executing court can direct the delivery of property.” Now the executing court has ordered delivery. W.P.(C) No.31233/2008 - 3 - 3. Learned counsel for petitioner contended that he may be permitted to invoke Article 226 of the Constitution of India as well. According to the learned counsel, sale has been conducted in gross valuation of Rule 72 A of Order XXI of the Code. Learned counsel for respondents contended that the contention was not pursued even in W.P.(C) No.3012/2007. 4. It is not disputed that petitioner did not file any application as provided under any of the rules of Order XXI of the code to set aside the sale on any ground whatsoever. No objection was also taken to the valuation of the property made by the respondents. 5. Though petitioner has raised a contention in W.P.(C) No.3012/2007 that the sale was conducted in gross violation of Order XXI Rule 72 A of the Code, he did not pursue that contention as is evident from the fact that he was satisfied with time for payment of the decree debt. This is also clear from the subsequent writ proceedings initiated by the petitioner. Writ W.P.(C) No.31233/2008 - 4 - petitioner is bound by the judgments referred above in the proceedings filed by him. In the circumstances, there is no reason why at this stage, petitioner should be allowed to contend that the sale is in violation of Order XXI Rule 72 A of the Code. Petitioner applied for and obtained sufficient time to pay off the decree debt, which he did not make use of. I do not find reason to interfere with the order directing delivery. This writ petition therefore, is dismissed. Sd/- THOMAS P. JOSEPH, JUDGE skr // True copy // P.A. to Judge.