IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 4TH OCTOBER 2007 / 12TH ASWINA 1929 WP(C).No. 35909 of 2004(Y) -------------------------- AGAINST THE ORDER IN EP 18 2001 IN OS.288/1999 of MUNSIFF COURT,VARKALA .................... PETITIONER: ------------ KEERTHY.S. KAVITHA, MAITHANAM, VARKALA. BY ADV. SRI.R.ANILKUMAR SRI.P.BANI RESPONDENTS: -------------- 1. VELAYUDHAN RAVEENDRAN, BHARATHY BHAVAN, VARKALA VILLAGE, VARKALA P.O. 2. VELYUDHAN SURESH, PADMATHEERTHAM VEEDU, CHEMMARUTHI VILLAGE, VARKALA P.O. 3. NARAYANAN CHANDRADASAN, CHANDRABHAVAN, CHERUKUNNAM, VARKALA VILLAGE, VARKALA P.O. 4. SUDHAKARAN, S/O.RAGHAVAN, VILAYIL VEEDU, VETTOOR VILLAGE, MELVATTOOR P.O. VIA VARKALA. 5. NADESAN, SANTHOSH KUMAR, CHAKKY, MUNDAYIL, VARKALA. BY ADV. SRI.P.JACOB VARGHESE SRI.S.M.PREM SMT.K.P.SANTHI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/10/2007, ALONG WITH WPC NO. 7604 OF 2007 WPC NO. 7629 OF 2007 WPC NO. 7719 OF 2007 WPC NO. 7735 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) 35909/04 Appendix Petitioner's Exts: Ext.P1 true true photocopy of the Execution petition dt.24.2.2001 in EP 18/01 in OS 288/1999 Ext.P2 the true photocopy of the sale proclamation dated 15.7.2003. Ext.P3 the true photocopy of the receipt No.66 dated 4.8.2003 from the office of the Munsiff's Court, Varkala. Ext.P4 the true photocopy of the receipt No.71 issued from the office of the Munsiff's court Varkala dt. 18.8.2003. Ext.4(a) the true photocopy of the receipt No.72 issued from the office of the Munsiff's Court, Varkala dt. 18.8.03. Ext.P5 the true photocopy order passed in EA No.211 to 214/03 in EA 18/01 in OS 288/99 by the Munsiff's Court, Varkala. M.N.Krishnan, J. ======================== W.P(C).Nos.35909/04, 7604/07, 7629/07, 7719/07 and 7735 of 2007 ======================== Dated this the 4th day of October, 2007. JUDGMENT All these Writ Petitions are filed to set aside the common order in E.A.Nos.211, 212, 213 and 214 of 2003 in E.P.No.18 of 2001 in O.S. No. 288 of 1999. All these execution applications were filed to set aside the sale under Order 21 Rule 90 of C.P.C. Brief facts necessary are stated as follows: 2. It is the case of the petitioner in E.A.No.211 of 2003 is that he is the plaintiff in suits, O.S.Nos.36, 39, 40 and 42 of 1999 and he had moved the application for setting aside the sale under Order 21 Rule 90 of C.P.C. holding that the sale is invalid in law. Petitioner in E.A.No.212 of 2003 is the decree holder in O.S.No.15 of 1999 and he has also challenged the sale on the ground that there is already a charge on the property. E.A.No.213 of 2003 is filed by the plaintiff in O.S.No.87 of 1999 in which he also sought to set aside the sale. E.A.No.214 of 2003 is filed by the decree holder in the E.P. itself stating about the invalidity of the sale. The court on consideration of the entire materials, allowed the applications and set aside the sale, which was conducted on 4.8.2003. The writ petitioner in all these cases is the auction purchaser of the property comprised in WP(C)35909/04, etc. -: 2 :- Sy.No.1071/1 of Varkala Village having an extent of 14 3/4 cents with a two storeyed house. 3. The inter se dispute between the parties looms large on the question of various liabilities, charge, etc. over the property. Whatever it may be, the present writ petitioner in all these cases was the successful bidder in the auction conducted by the court on the basis of which the sale certificate was issued and further proceedings were pending. Under Order 21 Rule 92 of C.P.C. an application to set aside the sale filed under Order 21 Rule 90 of C.P.C. has to be disposed of by the court and the Proviso to Order 21 Rule 92(2) of C.P.C. reads as follows: " Provided that no order shall be made unless notice of the application has been given to all persons affected thereby." So when a person purchases the property in court auction and the same is confirmed in his favour and the application is filed for setting aside the sale, the auction purchaser also has to be heard before taking a decision a final decision in the matter. Unfortunately, in this case, the auction purchaser has not even been impleaded and no notice is issued to him and thereby his valid right of hearing is totally deprived of. 4. Therefore, I set aside the common order passed in all these cases and remit back the same to the court below with a direction to the court to permit the present writ petitioner to file objection in the Execution Applications, E.A.Nos. 211, 212, 213 and 214 of 2003, hear all the parties concerned and also permit WP(C)35909/04, etc. -: 3 :- them to adduce evidence in support of their respective contentions and dispose of the matter in accordance with law. I make it very clear that the court shall see that all the parties interested are heard before the final disposal of the matter and there must be promptness in giving notice to all concerned. Parties are directed to appear before the court below on 12.11.2007. Writ Petitions are disposed of as above. M.N.Krishnan, Judge. ess 4/10