IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 22ND AUGUST 2008 / 31ST SRAVANA 1930 WP(C).No. 24842 of 2008(G) -------------------------- AGAINST THE ORDER DATED 15/03/2008 IN EA 47/06 IN EP 126/05 IN LA.717/2002 of PRINCIPAL SUB COURT,ATTINGAL .................... PETITIONER: ----------------- GOMATHI AMMA SREELATHA SREELATHA BHAVAN, BHARATHANNOOR DESOM PANGODE VILLAGE, NEDUMANGADU TALUK. BY ADVS. SRI.M.RAMACHANDRAN NAIR SRI.J.HARIKUMAR RESPONDENTS: ---------------------- 1. FEDERAL BANK LTD., KIZHUVILAM BRANCH REP. BY THE BRANCH MANAGER. 2. J.MADHUSODANAN NAIR CHIKKU NIVAS MUDAPURAM, KIZHUVILAM DESOM AND VILLAGE. BY ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No. 24842 OF 2008 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE PHOTOCOPY OF THE DECREE/ORDER IN LOK ADALATH CASE NO. 717/02 DATED 14.12.2002 WITH ANNEXURE A OF THE LOK ADALATH, ATTINGAL. EXHIBIT P2 : TRUE PHOTOCOPY OF THE E.P.NO. 70/05 DATED 15.10.2003. EXHIBIT P3 : TRUE PHOTOCOPY OF THE E.P.NO. 126/05 DATED 13.10.2005. EXHIBIT P4 : TRUE PHOTOCOPY OF THE PETITION UNDER ORDER XXI RULE 97 AND SECTION 151 C.P.C. DATED 22.2.2006. EXHIBIT P5 : TRUE PHOTOCOPY OF THE MEDICAL CERTIFICATE ISSUED BY THE MEDICAL OFFICER, KIZHUVILAM, DATED 13.2.2006. EXHIBIT P6 : TRUE PHOTOCOPY OF THE OBJECTION DATED 23.2.2006 FILED BY 1ST RESPONDENT. EXHIBIT P7 : TRUE PHOTOCOPY OF THE ORDER ON E.A. 47/06 IN E.P. 126/05 IN L.A. 717/2002 DATED 15.3.2008 OF THE SUB JUDGE, ATTINGAL. /TRUE COPY/ P.A. TO JUDGE. vkm M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.24842 of 2008 ------------------------------- Dated this the 22nd August, 2008. J U D G M E N T Petitioner is the second judgment debtor in E.P.No.126 of 2005. Ext.P1 award was passed by Lok Adalath, Thiruvananthapuram, on a pre-litigation complaint filed by the first respondent-Bank against the petitioner and her husband, the first defendant/second respondent. As per Ext.P1 award, judgment debtors have to pay on or before 30.6.2003 Rs.1,13,847/= with future interest at 6%. On failure to pay that amount, E.P.No.126 of 2005 was filed before Sub Court, Attingal. In that execution petition, property of the first judgment debtor was sold in auction and was purchased by the decree holder bank. The sale was later confirmed. The decree holder/auction purchaser applied to the executing court for delivery of the property. At that stage, petitioner filed E.A.No.47 of 2006 which was dismissed under Ext.P7 order. This writ petition is filed challenging Ext.P7 order. W.P.(C) No.24842/2008 2 2. Learned counsel appearing for the petitioner and first respondent decree holder were heard. 3. Learned counsel for the petitioner submitted that the petitioner is suffering from nervous complaints and she did not appear before the Adalath and did not sign any settlement and the property was sold in execution of the award due to the collusion between the decree holder bank and the first judgment debtor, and if delivery is to be given, petitioner will have no shelter, and property is worth much more than for what it was sold and she is prepared to pay the entire decree debt, interest and cost, and, therefore, in the interest of justice, the sale may be set aside. 4. Learned counsel appearing for the decree holder submitted that no application was filed before the executing court to set aside the sale either under Rule 89 or Rule 90 of Order XXI of Code of Civil Procedure and the sale was confirmed and the decree holder being the auction purchaser is entitled to take delivery of the property. Learned counsel in fairness submitted W.P.(C) No.24842/2008 3 that decree holder was not insisting for the property, but only for the amount due to the Bank. Learned counsel also submitted that if petitioner is prepared to pay the entire decree debt with interest and cost, the decree holder bank is prepared to give back the property to the judgment debtors. In view of the submission, the writ petition is disposed as follows. If the judgment debtors deposits before the executing court or pays to the decree holder bank Rs.60,000/= on or before 19.9.2008, and pays or deposits the balance of the decree debt with interest and cost including the cost in execution, on or before 20.10.2008, sale in favour of the decree holder bank will stand set aside without any further orders and the award will stand fully satisfied. Executing Court is directed to keep in abeyance the order for delivery till 20.9.2008. If Rs.60,000/= as directed is deposited, the order for delivery shall be kept in abeyance for a further period, till 21.10.2008. If the judgment debtors fail to comply with the direction, the property shall be delivered either on 22.9.2008 or 22.10.2008 respectively. M.SASIDHARAN NAMBIAR, JUDGE nj.