IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 CMA.No. 229 of 2000(A) ---------------------- CMA.51/1999 of PRL.SUB COURT,IRINJALAKUDA OS.1127/1988 of PRL.M.C. MUNSIFF'S COURT, IRINJALAKUDA .................... APPELLANT/ RESPONDENT IN C.M.A/DECREE HOLDER: ------------------------------------------------------------ JOSE, S/O. KANJIRAPARAMBIL, IYPPUNNY, ERINJERI ANGADI, TRICHUR VILLAGE, TRICHUR TALUK. BY ADV. SRI.GEORGE CHERIAN SRI.R.SREERAJ SRI. A.K. SESHADRI RESPONDENT/ APPELLANT/JUDGMENT DEBTOR:- ------------------------------------------------------ JOSE, S/O. CHAKKACHAMPARAMBIL DEVASSY, NEAR IRINJALAKUDA WATER TANK, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 20/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. ====================== C.M.A. No. 229 of 2000 ====================== Dated, this the 20th day of October, 2011. JUDGMENT C.M.A is directed against the order dated 29.02.2000 in C.M.A No. 51/1999 before the Subordinate Court, Irinjalakuda. 2. It appears that in execution of a decree in O.S. No. 1127 of 1988 the shares of a judgment debtor in a firm was sold in pubic auction for realisation of the decree debt as per order in E.P. 1159/98. After the sale, it appears that one of the judgment debtor filed E.A. No. 318/99 to set aside the sale under Order XXI Rule 90 CPC. The case put forward by the judgment debtor who assailed the sale was that his shares in the firm are not liable for attachment and sale in execution of the decree. The decree holder resisted the petition. 3. After hearing both sides, the Execution Court dismissed the petition. The matter was carried in appeal as C.M.A No. 51/99. The lower appellate court found that the finding of the Execution Court is untenable on legal grounds and therefore, it remanded the matter to the Execution Court for fresh consideration and in the light of the observations made by the C.M.A. No. 229/2000 : 2: said court. It is that order which is assailed before this Court. 4. After hearing the counsels on both sides, I am of the view that no grounds are made out to interfere with the order passed in C.M.A. No. 51 of 1999 by the lower appellate court. It could not be stated that the order is perverse or erroneous. Even assuming that the sale has taken place, as per the provisions of Order XXI Rule 90 CPC, sale could be assailed. The contrary view taken by the Executing Court cannot be upheld. All that the lower appellate court has done is to set aside the order and direct the Execution Court to consider the matter in accordance with law and in the light of the observations made by the said court. No legal infirmity is made out warranting interference at the hands of this Court. The C.M.A is without merits and the same is dismissed. sd/- P. BHAVADASAN, JUDGE. rv /True Copy/ P.A to Judge. C.M.A. No. 229/2000 : 3: P. BHAVADASAN, J. ----------------------------------------------------------- C.M.A. No. 229 of 2000 ------------------------------------------------------------- Dated this the 20th day of October, 2011. ORDER