IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 WP(C).No. 26333 of 2008(I) -------------------------- OS.94/1980 of SUB COURT, PATHANAMTHITTA .................... PETITIONER: ------------ INIDAN BANK, SASTHAMCOTTA, REPRESENTED BY ITS BRANCH MANAGER. BY ADV. SRI.S.EASWARAN RESPONDENTS: ------------- G.CHANDRASEKHARAN NAIR, PERINGOLIL VEEDU, MANNADI MURI, ADOOR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.26333 of 2008 ------------------------------- Dated this the 3rd September, 2008. J U D G M E N T Petitioner is the decree holder in O.S.No.94 of 1980, on the file of Sub Court, Pathanamthitta. A mortgage decree was passed against the respondent, judgment debtor, on 12.1.1981. Ext.P2 execution petition was filed for realisation of the decree debt, by sale of the mortgaged properties. Item Nos.1 and 2 of mortgaged properties were sold and the sale is yet to be confirmed. As against Item No.3, E.A.No.420 of 1990 was filed by third party claimants, setting up the right over the property under a revenue auction sale. Under Ext.P4 order, learned Sub Judge kept the claim petition in abeyance, as decree holder had sought sale of remaining Item No.4 of the decree schedule properties. Under Ext.P5 order, learned Sub Judge dismissed the execution petition on the ground that no steps taken. Ext.P5 order shows that execution petition was dismissed for default only on the ground that decree holder has not taken W.P.(C) No.26333 of 2008 2 steps. Ext.P5 order shows that judgment debtor was also not present. This petition is filed under Article 227 of the Constitution of India challenging Ext.P5 order. 2. Learned counsel appearing for the petitioner was heard. In view of the order to be passed in this case, it is not necessary to issue notice to the respondent. 3. Learned counsel pointed out that if the execution petition is to be dismissed, period of limitation to realise the decree debt by proceeding against the property or person would be barred, and, in such circumstances, learned Sub Judge should not have dismissed the execution petition, especially when E.A.No.420 of 1990, the claim petition filed in respect of Item No.3 of decree schedule property was kept in abeyance under Ext.P4 order. If the claim petition is to be dismissed, the decree holder is entitled to proceed against the said property, and in such circumstances, Ext.P5 order is to be quashed. 4. There is force in the submission. When the W.P.(C) No.26333 of 2008 3 execution petition contain a prayer for sale of Item No.3 of the decree schedule property and the question of sale of that property was kept in abeyance, in view of E.A.No.420 of 1990, learned Sub Judge was not justified in dismissing the execution petition, as has been done under Ext.P5. Ext.P5 order is quashed. E.P.No.219 of 1989 is restored to file. Sub Court, Pathanamthitta is directed to proceed with the execution petition, in accordance with law. 5. Learned counsel appearing for the petitioner submitted that Sub Court may be directed to dispose the claim petition expeditiously. Learned Sub Judge is directed dispose E.A.No.420 of 1990 expeditiously. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.