IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 WP(C).No. 3656 of 2009(I) ------------------------- AGAINST THE ORDER IN IN EA 74/2009 IN EP 54/2004 IN EA.1007/2008 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER: --------------- NARAYANAN, S/O. RAGHAVAN, KAKKIMKATTIL, OLIPPARA, KAYARADI VILLAGE, CHITTUR TALUK, PALAKKAD. BY ADV. MR.K.K.DHEERENDRAKRISHNAN RESPONDENTS: --------------- 1. SAKKARIYA, S/O. PAILY, MAPPILIPADIKKAL, OLIPPARA, THIRUVAZHIYODE VILLAGE, CHITTUR TALUK, PALAKKAD. 2. PANKAJAKSHI, W/O. RAGHAVAN, OLIPARA, KAYARADI VILLAGE, CHITTUR TALUK, PALAKKAD. ADV. MR.A.R.GANGADAS FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 3656 of 2009(I) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: E.A.NO.74/2009. EXT.P2: E.A.NO.1007/2008 EXT.P3: REPORT OF THE ADVOCATE COMMISSIONER. RESPONDENTS' EXHIBITS: NIL // TRUE COPY // P.A TO JUDGE. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.3656 of 2009 - I --------------------------------- Dated this the 15th day of December, 2009 J U D G M E N T Writ petition is filed seeking the following relief: “To issue a writ of mandamus directing the learned sub Court, Palakkad to consider and dispose E.A.No.74/2009 before effecting delivery of the plaint schedule property.” 2. Petitioner is the judgment debtor in E.P.No.54 of 2004 in O.S.No.73 of 1994 on the file of the Sub Court, Palakkad. Decree executed was one passed for refund of advance sale price paid on an agreement of sale. Pursuant to execution proceedings sale of immovable property belonging to the first judgment debtor was conducted to realise the decree debt and in the auction property was purchased by the decree holder. Sale has been confirmed later. Petitioner/2nd judgment debtor had filed a petition under Order XXI Rule 90 of the Code of Civil Procedure to set aside that sale. That application was, later, dismissed for default. An application filed for restoration of that petition too was dismissed, and subsequently the sale was confirmed. At that stage, when delivery of the property sought to be declared was on the anvil the petitioner/2nd judgment debtor filed an application purportedly under Section 47 of the Code of Civil Procedure contending that the first judgment debtor, his mother, W.P.(C).No. 3656 of 2009 - I 2 has no saleable interest over the property. The only relief canvassed in the petition is for consideration of the petition filed under Section 47 of the Code of Civil Procedure, copy of which is produced as Ext.P1, before ordering delivery of the property. 3. I heard the counsel on both sides. 4. Having regard to the submissions made and taking note of the facts and circumstances presented, I direct the court below to consider and dispose of Ext.P1 application moved by the first judgment debtor in accordance with law. I am not expressing any opinion of the merit of that petition as to whether any question is raised to be adjudicated upon or not. However that petition has to be considered and disposed before effecting delivery of the property. Execution court is directed to dispose of Ext.P1 application moved by the judgment debtor within a period of four weeks from the date of this judgment. Writ petition is disposed of above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-