IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 FAO.No. 243 of 2009() --------------------- AGAINST THE ORDER DATED / / IN EA 1458/2007 EP 187/99 IN OS.469/1992 of II ADDL.SUB COURT,THRISSUR .................... PETITIONER ------------------------------ V.P.DAVIS, S/O. POULOSE, OUTHUDEN HOUSE KANDASSAMKADAVU DESAM, KARAMUKKU VILLAGE TRICHUR TALUK AND DISTRICT, P.O.KANDASSANKADAVU PIN-680613. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENTS: --------------- 1. BANK OF IDNAIA, KANDASSAMKADAVU BRANCH KANDASSAMKADAVU-680613. 2. ENET GEORGE PANIKKULAM HOUSE, KOODAPPUZHA, CHALAKKUDY. 3. LINCY JOHNSON, ERINCHERY HOUSE, MANNUTHY, TRICHUR, P.O.MANNUTHY-680651. 4. SHINY PASTO AMBOOKKAN, C/O. RETD. CAPTAIN POULOSE, AMBOOKKAN WEST CHALAKKUDY, THRISSUR DIST. PIN-680307. 5. NIMMY RAPHEAL, MECHERI HOUSE, P.O.OLLUR, TRICHUR DIST.-680306. 6. JOSEPH ANTONY, NETTISSERY, PUTHEN VETUVAZHY, P.O. NETTISSERY, TRICHUR. 7. MARIAMMA JOSEPH, W/O. JOSE PAUL, KINATTINGAL HOUSE, CHELAKKOTTUKARA, TRICHUR. 8. PAUL ANTONY THEKKANATH, CHALAKKUDIKKARAN HOUSE, SNDP JUNCTION, MAJAPRA ROAD, THRISSUR DIST. PIN-683573. 9. OFFICIAL RECEIVER COURT COMPLEX, AYYANTHOLE, THRISSUR-3. 10. KURIEN FRANCIS, S/O. P.A.FRANCIS, PADIKKALE HOUSE, KORATH LANE, EAST FORT, CHEMBOOKKAVU, THRISSUR (AUCTION PURCHASER) TRICHUR-5. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R10 SRI. T C SURESH MENON FOR R10 SRI.JIBU P THOMAS FOR R10 SRI.P.S.APPU FOR R10 SRI.A.R.NIMOD FOR R10 SRI.C.A.ANOOP FOR R10 SRI.K.N.PADMAKUMAR FOR R9 SRI.DEVAN RAMACHANDRAN FOR R1 SRI.K.M.ANEESH FOR R1 SRI.K.SANTHOSH KUMAR (KALIYANAM) FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO. 3474 OF 2009 ON FAO 243/2009 DISMISSED. SD/- A.K. BASHEER (JUDGE) SD/- M.L.JOSEPH FRANCIS (JUDGE) 8.1.2010 // TRUE COPY // dl/ A. K. BASHEER & M. L. JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No: 243 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of January, 2009. JUDGMENT A.K. Basheer J., This appeal is at the instance of the claimant in an Execution Application. The application filed by the appellant under Order 21 Rule 90 of the Code of Civil Procedure seeking to set aside the sale of the property involved in the suit, was dismissed by the court below holding that no fraud or illegality as alleged, had been proved in the case. 2. Shorn of unnecessary details, the facts leading to the filing of the appeal may be briefly noticed. 3. The suit property was admittedly sold in court auction on February 16, 2004. The appellant, who claims to be in possession of the property on the strength of an agreement for sale executed by the judgment debtor, filed Writ Petition No. 8667 of 2004 before this court on March 10, 2004 challenging the Court sale. The writ petition was pending before this court till August 6, 2007, on which day it was dismissed, giving liberty to the appellant to approach the F.A.O. No: 243 of 2009 :2: execution court and file a petition under Order 21 Rule 90. The interim order of stay was kept alive for one more month. 4. The appellant filed the above application before the execution court under Order 21 Rule 90 on September 4, 2007. However, the said application was dismissed by the court below holding that the appellant had failed to explain the “inordinate delay” in filing the application. 4. Heard learned counsel for the parties and perused the materials available on record. 5. Learned counsel for the appellant submits that the court below has passed the impugned order without any application of mind. The contentions raised by the appellant have not been considered by the court below, in their proper perspective. According to the learned counsel, the reason for the so called “inordinate delay” was discernible from the record itself. He submits that a very valuable property having an extent of 27 cents with a building therein, was sold for a paltry sum of Rs.3,50,000/-. 6. We find considerable force in the above and other contentions raised by the appellant in the memorandum of appeal. In our view, these contentions will have to be necessarily considered by the court below. Therefore we do not propose to advert to or deal with them at this stage. It will be open to the F.A.O. No: 243 of 2009 :3: parties to urge their respective contentions before the court below. 7. Therefore, the impugned order is set aside. The case is remanded back to the court below for fresh disposal in accordance with law. 8. The parties shall appear before the court below on January 27, 2010. The court below shall make an earnest endeavour to dispose of the matter as expeditiously as possible, at any rate, within three months from today. 9. Status quo as regards possession of the subject matter shall be maintained till the disposal of the application, by the court below. A. K. BASHEER, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/