IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 WP(C).No. 3374 of 2008(B) ------------------------- AGAINST THE ORDER IN EA 119/2007 IN EP.1/2003 of III ADDL. DISTRICT COURT, ERNAKULAM .................... PETITIONERS: ---------------------- 1. M/S.AGRO TECH INDUSTRIES AND EXPORTERS, REPRESENTED BY ITS PROPRIETRIX, MRS.P.I.SAFIYA BEEVI, VELLAPPALLY HOUSE, M.G.ROAD, RAYONPURAM POST, KANJIRAKAD, PERUMBAVUR 683 543. 2. V.P.LOVESY, S/O.V.K.PAREED, VELLAPPALLY HOUSE, M.G.ROAD, RAYONPURAM POST, KANJIRAKAD, PERUMBAVUR 683 543. BY ADV. SRI.K.P.SREEKUMAR RESPONDENTS: ------------------------- 1. M/S.MAHARASHTRA APEX CORPORATION LTD., MANIPAL, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, CHRISTY Bo.Y.J., AGED 57 YEARS, S/O.JOHNSON, RESIDING AT 'ANUGRAHA BHAVAN', MYLADUMKUNNU, VADAKKVILA P.O., PIN 691 010. 2. K.A.POULOSE, KODIYATTIL HOUSE, SOUTH MAZHIVANNUR P.O., MADAVUR PIN 686 669. 3. K.M.BABY, S/O.MATHAI, KATTAKAYAM, PATTIMATTOM ROAD, ERNAKULAM PIN 682 008. 4. DENNIS AUGUSTINE, S/O.JOSEPH, NEDUMPARAMBIL HOUSE, KUMBALANGHY SOUTH P.O. KOCHI 682 007. 5. KAUMA PAUL, VENDARAPPILLIL HOUSE, PERIMPILLY P.O., MULANTHURUTHY. R1 BY ADV. SRI.S.R.DAYANANDA PRABHU R4 BY ADV. SRI.JOHN JOSEPH(ROY) R5 BY ADV. SRI.V.R.KESAVA KAIMAL R5 BY ADV. SRI.N.M.MADHU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.3374/2008 B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE EXECUTION PETITION, E.P.NO.1/2003 OF THE FILE OF THE DISTRICT COURT, ERNAKULAM. EXT.P2: COPY OF THE JUDGMENT DTD. 04/01/2005 IN WP(C) NO.10075/2005 PASSED BY THIS HON'BLE COURT. EXT.P3: COPY OF THE ORDER DTD. 07/06/2005 PASSED BY THE DISTRICT COURT, ERNAKULAM, IN E.A.NO.23/2005. EXT.P4: COPY OF THE APPLICATION EA 113/05 ON THE FILE OF THE DISTRICT COURT, ERNAKULAM. EXT.P5: COPY OF THE APPLICATION EA 119/07 ON THE FILE OF THE DISTRICT COURT, ERNAKULAM FILED BY THE 1ST RESPONDENT/DECREE HOLDER. EXT.P6: COPY OF THE ORDER DTD. 06/12/2007 PASSED BY THE DISTRICT COURT, ERNAKULAM, IN E.A.NO.119/2007. EXT.P7: COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN WP(C) NO.10075/2005. EXT.P8: COPY OF THE VALUATION REPORT DTD. 20/10/1997 IN RESPECT OF THE PROPERTY OWNED BY THE 2ND RESPONDENT. EXT.P9: COPY OF THE VALUATION REPORT DTD. 17/12/1997 IN RESPECT OF THE PROPERTY OWNED BY THE 3RD RESPONDENT. EXT.P10: COPY OF THE ATTACHMENT SCHEDULE IN RESPECT OF THE PROPERTIES. 4TH RESPONDENT'S EXHIBITS: EXT.R4(A): COPY OF THE SALE CERTIFICATE. EXT.R4(B: COPY OF THE DELIVERY SANNATH. 5TH RESPONDENT'S EXHIBIT: EXT.R5(A): COPY OF THE SALE CERTIFICATE DTD. 19/06/2007. /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.3374 OF 2008 =========================== Dated this the 21st day of May, 2008 JUDGMENT Petitioners are judgment debtors 1 and 4 in E.P.1/2003 on the file of District Court, Ernakulam. Towards the security of the amount borrowed by the petitioners from the respondent decree holder, properties belonging to judgment debtors 2 and 3 who are respondents 2 and 3 herein were mortgaged. A decree for realisation of the amount due charged on the mortgaged property was passed. E.P.1/2003 was filed for execution of the decree. In the execution petition decree holder sought an order of attachment of the immovable properties of the petitioners. An order of attachment was passed. It was challenged before this court in W.P.(C) 10075/2005. It was contended by the petitioners that decree holder is entitled to proceed against the immovable properties of the petitioners only after exhausting the remedy W.P.(C) 3374/08 2 against the mortgaged properties. Under Ext.P2 order this court quashed the order of attachment and directed the executing court to pass fresh orders in the application for attachment after hearing the petitioners. Thereafter the executing court heard the objections raised by the petitioners and found that properties of the petitioners cannot be proceeded against without first exhausting the remedy against the mortgaged properties, under Ext.P3 order. Later the execution petition was dismissed for non prosecution. It was later restored to file without notice to the petitioners on an endorsement made by the decree holder in the restoration petition that judgment debtors are ex parte. The mortgaged property was thereafter sold in court sale. It was purchased by respondents 4 and 5. Thereafter another petition was filed by the decree holder to attach the properties of petitioners. Ext.P6 order of attachment was passed by the executing court. This petition is filed under Article 227 of the Constitution of India to quash Ext.P6 order as well as the proceedings unlimited W.P.(C) 3374/08 3 in the sale of the mortgaged properties contending that the order of attachment was passed without notice to the petitioners and without hearing their objections, eventhough the order of attachment originally passed was raised under Ext.P3 order. It was contended that mortgaged properties were sold in collusion with respondents 2 and 3 and therefore the sale is not binding on the petitioners. 2. Respondent appeared and first respondent contended that pursuant to the court sale, sale certificate was issued in favour of respondents 4 and 5 and delivery was also taken. Respondents also contended that 5th respondent sold his right in favour of a third party. 3. The argument of the learned counsel appearing for petitioners is that the sale of the mortgaged properties is vitiated by fraud as the execution petition was restored without notice to petitioners and the property was sold for grossly inadequate value in collusion with the other judgment debtors. Learned counsel appearing for petitioners also pointed out that a petition is W.P.(C) 3374/08 4 filed before the executing court under Rule 90 of Order XXI as E.A.52/2008 to set aside the sale on the ground of fraud and it is pending. Learned counsel also argued that in the light of Ext.P2 and P3 orders the executing court should not have passed Ext.P6 order without hearing the petitioners and that too after restoring the execution petition without notice to the petitioners. 4. Though learned counsel appearing for petitioners vehemently argued that sale of the mortgaged properties was vitiated by fraud, it is not a question to be decided in this petition especially when a petition filed under Rule 90 of Order XX1 of Code of Civil Procedure is pending before the executing court. Executing court is directed to dispose the petition as expeditiously as possible in accordance with law. The prayer for quashing the sale as sought for by petitioners cannot be granted in this petition. 5. As far as Ext.P6 order is concerned, as rightly pointed out by learned counsel appearing for petitioners the executing court should have heard the petitioners before passing the order of W.P.(C) 3374/08 5 attachment in view of Exts.P2 and P3 orders. Notice should have been given to the petitioners before Ext.P6 order was passed. In view of Ext.P6 order petitioners are directed to file an objection to the petition for attachment of the properties, before the executing court within two weeks from today. Executing court shall pass appropriate orders in accordance with law, after hearing all the necessary parties. Respondents herein are directed to appear before the executing court and file objections, if any to the petition filed by petitioners to set aside the sale. Petitioners to serve notice of the petitions within two days from today. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006