IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P. JOSEPH THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 OP(C).No. 3562 of 2011(O) ----------------------------------- E.P. NO.48/2009 IN OS.147/2008 of SUB COURT, CHENGANNUR .................... PETITIONRS: -------------------- 1. G.SAMPATH, AGED 35 YEARS, S/O.GOPALAN NAIR, GOPALASADANAM, THITTAMEL MURI CHENGANNUR. 2. REMADEVI, W/O.GOPALAN NAIR OF DO..DO.. 3. SHOBHA, D/O. GOPALAN NAIR OF DO..DO.. 4. SANTHOSH, S/O.GOPALAN NAIR OF DO..DO... 5. LEKHA, D/O. GOPALAN NAIR DO..DO.. 6. SHAJI,S/O. GOPLAN NAIR DO...DO.. BY ADV. SRI.N.ASHOK KUMAR RESPONDENT(S): ---------------------- 1. SOMASEKHARAN PILLAI, AGED 55 YEARS S/O. RAMAKRISHNA PILLAI, PRANAVAM VEEDU VANNAZHY MURI, PANDANADU VILLAGE, CHENGANNUR TALUK 689 121. 2. B.MOHAN KUMAR, AGED ABOUT 45 YEARS MADHAVASSERIL, MANGALAM PO, CHENGANNUR 689 121. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SCL. OP(C).No. 3562 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF E.P.NO.48/09 IN O.S. 147/08 DATED 14/9/2009 FILED BEFORE SUB COURT, CHENGANNUR. P2: TRUE COPY OF SALE PROCLAMATION WITH SCHEDULE OF PROPERTY DATED 29/7/2011 OF SUB COURT, CHENGANNUR. P3: TRUE COPY OF PETITION AS E.A. NO.25/10 IN E.P. NO.48/09 DATED 8.2.2O10 SUB COURT, CHENGANNUR. P4: TRUE COPY OF PETITION IN E.A. NO.74/11 IN E.P 48/09 IN O.S. 147/08 OF SUB COURT, CHENGANNUR DATED 3.9.2011. P5: TRUE COPY OF I.A. NO.411/2011 IN O.S. NO.147/2008 DATED 21.10.2011 SUB COURT, CHENGANNUR. RESPONDENTS EXHIBITS: NIL //TRUE COPY// PA TO JUDGE SCL. THOMAS P. JOSEPH, J. ---------------------------------------- O.P.(C) NO. 3562 OF 2011 ------------------------------------------ Dated this the 3rd day of November, 2011. J U D G M E N T First respondent appears through counsel. 2. Petitioners are judgment debtors in E.P. No.48/2009 in O.S.No.147/2008 of the court of learned Sub Judge, Chengannur. 3. According to the petitioners, the amount covered by the Execution Petition is Rs. 1,48,475/-, the amount mentioned in the sale proclamation is Rs.1,61,378/-, the upset price fixed is Rs.6,40,000/- and the property was sold in auction for the said amount. That according to petitioners indicate that the entire property was not required to be sold for realisation of the amount due under the decree. Petitioners say that the property is worth more than Rs.20 lakhs. In the meantime, petitioners filed Ext. P5 application dated 21.10.2011 to set aside the ex parte decree dated 5.9.2011 and that has not been dispose of. Prayer in this petition is to set aside Ext. P2, sale proclamation and the sale O.P.(C) NO. 3562 OF 2011 2 conducted on 5.9.2011. Learned counsel requested that until Ext. P5 application to set aside the ex parte decree is disposed of, confirmation of sale may be stayed. 4. Learned Counsel for the 1st respondent resisted the request of petitioners. 5. When the executing court has sold the property in auction and petitioners are aggrieved by that, remedy available to the petitioner is to apply to set aside the sale either as provided under Order 21 Rule 89 or 90 of Order XX1 or under Sec.47 of the Code of Civil Procedure if circumstances warranted it. Without doing that, petitioners cannot straight away come to this Court and request to set aside the sale. 6. Learned counsel submits that petitioners are filing application in the executing court to set aside the same. If law provides, it is open to the petitioners to do so. But the request to set aside sale in this proceeding cannot be entertained. However learned Sub Judge is directed to dispose of Ext. P5 application to set aside ex parte decree if steps on that application O.P.(C) NO. 3562 OF 2011 3 are complete, as early as possible, having regard to the grievance of petitioners. Original petition is disposed of with the above observation. THOMAS P. JOSEPH, JUDGE. SCL.