IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(C).No. 27669 of 2009(O) ----------------------------------------- OS.335/2003 of II ADDL.SUB COURT,THRISSUR .................... PETITIONER(S): ---------------------- U.K.SREEDHARAN, AGED 66 YEARS,S/O.KITTUNNI, URALATH,CHIYYARAM,TRICHUR-26. BY ADVS.MR.VAKKOM N.VIJAYAN MR.R.S.NAIR SMT.V.RENJU SMT.M.A.RAMITHA RESPONDENT(S): ---------------------- 1. PERINGOTTUKARA NAMBOODIRI YOGAKSHEMA SABHA,ANTHIKKAD,REP.BY ITS SECRETARY. 2. ANIL KUMAR,SON OF VASUDEVAN, EASWARAMANGALATHU HOUSE,ALAMVETTU VAZHI, CHIYYARAM,TRICHUR. 3. SURESH BABU,SON OF SREEDHARA MENON, ANTHOOR HOUSE,PURANATTUKARA,TRICHUR. R1 BY ADV. MR.N.M.MADHU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.27669/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 335/03 OF THE SUB COURT, TRICHUR. P2:- COPY OF THE EP. NO.282/06 IN OS. 335/2003 BEFORE THE SUB COURT,TRICHUR. P3:- COPY OF THE EA. NO.1190/09 IN EP. 282/06. P4:- COPY OF THE STAY PETITION EA. 1191/2009. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.27669 OF 2009 -------------------------- Dated this the 16th day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) To issue a writ of certiorari or other appropriate writ, direction or order calling for the records leading to the passing of order of delivery ordered on 30/09/2009 in E.A No.1323/2009 in E.A No.1314/2009 in E.P No.282/2006 in O.S No.335/2003 and stay the same. ii) To issue a writ of mandamus or other appropriate writ, direction or order directing the court below to consider and pass orders on Exts.A3 and A4 petitions pending before the Second Additional Sub Court, Thrissur. iii) To pass such other and further orders as this Hon'ble Court deems fit and proper in the circumstances of the cases. W.P.(C).No.27669 OF 2009 Page numbers iv) To order the costs of these proceedings to the petitioner. 2. Petitioner who is not a party to the suit O.S No.1079 of 2001 in which a charge decree had been passed in favour of the first respondents filed a petition before the execution court at the stage when sale of the property was confirmed awaiting its delivery to the decree holder. The grievance canvassed by the petitioner is that without considering the petition moved obstructing the execution of the decree raising a contention that the judgment debtors have no alienable right over the property sold, the court below has ordered for delivery of the property. On the other hand, the learned counsel for the first respondent/decree holder submits that the petition filed was one under Order 21 Rule 58 and Section 151 of the Code of Civil Procedure and the claim W.P.(C).No.27669 OF 2009 Page numbers was raised on the basis of a pendente lite transfer from the judgment debtor. Submission as made above is disputed by the counsel for the petitioner contending that long before furnishing the property as security for the loan transaction, the judgment debtor had divested his title by a sale deed in favour of his vendor and so much so, he had no alienable right over the property brought to sale in execution. Whatever be the merit of the challenge canvassed by the petitioner, and also of the wrong provision which had been quoted in his application, the court below is expected to give an opportunity to the claimant to substantiate his case and dispose that application after hearing both sides on merit. Without considering the claim raised over the property which was sold to satisfy the decree it is not correct to pass an order for delivery of the property. So much so, the court below is directed to consider and dispose of the W.P.(C).No.27669 OF 2009 Page numbers petition filed by the petitioner in accordance with law as expeditiously as possible, at any rate within a period of four months from the date of this judgment providing opportunity to both sides to lead evidence in support of their respective case. Subject to the above directions, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv