IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 WP(C).No. 23019 of 2010(O) -------------------------- AGAINST THE ORDER IN EP.216/04 IN OS.127/1999 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONERS: --------------- 1. M.M.S.RAWTHER S/O.MEERAN KUNJU, 6/16 ,M.S.MANZIL POTHUNDI ROAD, VALLENGI, NEMMARA CHITTUR TALUK, PALAKKAD 2. M.ISMAIL S/O.MEERA SAHIB, 7/217 ORAVANCHIRA KALAM, KAIRINIPARA STREET THIRUVAZHIYAD, KAIRADI PO, CHITTUR TALUK PALAKKAD DISTRICT. BY ADV. SRI.H.BADARUDDIN RESPONDENTS: --------------- 1. M/S.SAHYA FINANCE & CHITS PVT.LTD REGD OFFICE AT 12/189, COIMBATORE RD SULTHANPET, PALAKKAD, REP BY ITS CHAIRMAN 678 001 2. JAMES MATHEW S/O.MATHEW, KIZHAKUBAGATHU, MLA ROAD NEMMARA, CHITTUR, PALAKKAD PIN 678 508. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.23019 of 2010 --------------------------------------- Dated this 23rd day of July, 2010 JUDGMENT Judgment debtors in E.P.No.216 of 2004 in O.S.No.127 of 1999 of the court of learned Sub Judge, Palakkad are the petitioners before me. They sought a direction to the learned Sub Judge to keep in abeyance confirmation of the sale effected as per order on E.P.No.216 of 2004 and warrant of arrest issued by the court against petitioners until reasonable time till executing court verified the legality of pendancy of E.P.Nos.174 of 2008 191 of 2008 in O.S.No.125 of 1999 a direction to the executing court to verify legality of the execution petition against petitioners and to verify the account to find out whether part of property was sufficient to discharge the decree debt. Learned counsel for petitioners contend that decree itself has become void and unexecutable in view of the decision of this court in O.P.No.31099 of 2002. It is also the submission of learned counsel that there was no verification of the actual amount due from the petitioners at the time sale was conducted and warrant of arrest was issued against them. Further contention is that since earlier execution petitions were dismissed, respondent No.2 W.P.C.No.23019 of 2010 : 2 : ought to have taken steps for its restoration under Order XXI Rule 106 of the Code of Civil Procedure. 2. As the petitioners also agree, sale was conducted on 23-06-2010 and it is so recorded by the executing court on 25-06- 2010. So far as there is no application moved in the executing court to set aside the sale there is no reason for this court to direct that sale shall not be confirmed if otherwise executing court thinks that sale is to be confirmed. 3. The argument that decree is void and unexecutable on account of the decision of this court in O.P.No.31099 of 2002 is equally unsustainable for the reason that executing court cannot go behind the decree. Learned counsel has not pointed out any observation or finding in the decision of this court relied on by learned counsel which states that in view of that decision all pending decrees would become unenforceable and void or that the sale conducted is without any legal effect. 4. It is not as if law prevents simultaneous execution against the property of petitioners and personally against them. Sale has been conducted and if the sale proceedings are not sufficient to discharge the decree debt it is open to respondent No.1 to proceed personally against petitioners or in any other W.P.C.No.23019 of 2010 : 3 : manner as provided under law. If verification of the amount actually due is required that is a matter which petitioners have to take up with the executing court. Resultantly without prejudice to the right if any, of petitioners to redress their grievance in other manner provided under law this writ petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-