IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 WP(C).No. 24469 of 2007(K) ------------------------------------- AGAINST THE ORDER DATED 17/07/2007 IN IA 621/2007 IN AS.100/2006 of DISTRICT COURT, MANJERI .................... PETITIONER: ------------------- KOZHIPPURATH SAROJINI, S/O. APPUKUTTAN, PARAPPANANGADI AMSOM DESOM, TIRURANGADI TALUK. BY ADV. SRI.K.RAMACHANDRAN SMT.A.R.DIVYA RESPONDENTS: ---------------------- 1. CHERIYA GANGADHARAN, S/O. VELAHUDHAN, KOODATHINGAL HOUSE, PARAPPANANGADI P.O., TIRURANGADI TALUK, MALAPPURAM DISTRICT. 2. DAMAYANTHI K., W/O. BALAKRISHNAN, LECTURER, SNDP CODLLEGE, CHEMBUR, MUMBAI. 3. LAKSHMI K., W/O. ASOKAN (LATE), KARUVAMPOYIL HOUSE, CHUNGATHARA, MALAPPURAM DIST. 4. P.NALINI, W/O. GANGADHARAN, SECRETARY, OORNGATTIRI SERVICE BANK, AREACODE, MALAPPURAM DISTRICT. 5. V.SOUMINI, W/O. ACHUTHAN, VAKKAVATH HOUSE, CHUNGAM WEST HILL, KOZHIKODE. 6. SUDEV, S/O. CHERIYA GANGADHARAN, KOODATHINGAL HOUSE, PARAPPANANGADI AMSOM DESOM, PARAPPANANGADI P.O., MALAPPURAM DISTRICT. 7. SECRETARY, PARAPPANANGADI REGIONAL HOUSING CO-OPERATIVE SOCIETY, PARAPPANAGADI P.O. R7 BY ADV. SRI.V.RAJENDRAN R1, R6 BY ADV. SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.24469/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE IA. NO.621/07 IN AS. NO.100/06 DT. 30.6.07, BEFORE THE DISTRICT COURT,MANJERI. EXT.P2:- COPY OF THE COUNTER AFFIDAVIT FILED BY THE PRESENT RESPONDENTS 1 AND 6 IN IA. NO.621/07 IN AS. NO.100/06 DT. 12.7.07 BEFORE THE DISTRICT COURT, MANJERI. EXT.P3:- COPY OF THE COUNTER FILED BY THE 7TH RESPONDENT IN IA. NO.621/07 IN AS. NO.100/06 DT. 13.7.07 BEFORE THE DISTRICT COURT, MANJERI. EXT.P4:- COPY OF THE ORDER OF THE DISTRICT JUDGE MANJERI IN IA. NO.621/07 IN AS. NO.100/06 DT. 17.7.07. /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 24469 OF 2007 = = = = = = = = = = = = = = = Dated this the 14th day of January, 2008. J U D G M E N T This writ petition is preferred against the order of the learned District Judge, Manjeri in I.A.621/07 in A.S.100/06. The writ petitioner herein is the plaintiff in a suit for specific performance. He has obtained a decree for return of the amount and he has filed an appeal before the District Judge, Manjeri for getting specific performance of the contract. I am informed that another suit is filed by the defendant in the suit for a mandatory injunction directing the plaintiff in the specific performance suit to vacate the premises. Meanwhile, the defendant in the specific performance suit gifted the property to his son who in turn again gifted the property to his son and that son mortgaged the property by way of an equitable mortgage to a Bank to raise a loan and it is for the realisation of the amount due under the mortgage the 7th respondent in the I.A. filed ARC proceedings which has culminated into a decree and it is in execution of that decree W.P.C 24469 OF 2007 -:2:- the Bank wants to sell the property for realisation of the amount. Admittedly the subject matter of the suit in both the cases is the very same property. If the specific performance decree is granted how far the mortgage will be binding is a question to be considered. Even if the prayer for specific performance is refused and the prayer for return of advancement is retained it is also a question whether there will be a charge under Section 55(6) of the T.P. Act will arise. So these are all matters which requires consideration and if the property is now sold and it is bid in auction by a third party it will further complicate the issue and therefore in the interest of justice I set aside the order passed by the learned District Judge in I.A.621/07 in A.S.100/06 and grant a stay regarding the execution filed by the Bank for the sale of the property for a period of three months. Meanwhile, I direct the District Judge to dispose of A.S.100/06 and if there are connected appeals filed along with, the same also, so that there can be a finality to the litigation. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-