IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 OP(C).No. 407 of 2010(O) ------------------------ ARC.1917/2004-05 OF SUB COURT,THALASSERY .................... PETITIONERS -------------------- 1. V.K.KARTHIYAYANI AGED 47 YEARS, D/O.KUNHIRAMA PANICKER, VANNATHANKANDY HOUSE, PO KADACHIRA,KANNUR DISTRICT. 2. K.DASAN AGED 52 YEARS, S/O.CHANDU PANICKER, VANNATHANKANDY HOUSE, PO KADACHIRA, KANNUR DISTRICT. BY ADVS. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENT: -------------------- THE SECRETARY, CANNANORE CO-OPERATIVE HOUSING CONSTRUCTION SOCIETY LTD., KANNUR-1. BY ADVS. SRI.A.MOHAMED MUSTAQUE SRI.K.R.AVINASH (KUNNATH) THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 407 of 2010(O) ---------------------------------- EXT.P1. COPY OF THE E.P. NO.64/2010 IN E.P.NO.434/2006 IN A.R.C. NO.1917/04-05 ON THE FILES OF THE SUB JUDGE, THALASSERY. EXT.P2. COPY OF THE OBJECTIONS DATED 21.07.2010 FILED BY THE PETITIONERS EXT.P3. COPY OF THE DOCKET PROCEEDINGS RESPONDENTS EXHIBITS : NIL ------------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.407 of 2010 --------------------------------------- Dated this 13th day of December, 2010 JUDGMENT Respondent appears through counsel. 2. This petition is filed by petitioners challenging order passed by learned Sub Judge, Thalassery on 19-11-2010 directing delivery of property to the respondent in execution of the award in A.R.C.No.1917/04-05. Property was sold in auction and respondent filed Ext.P1, E.P.No.434 of 2006 for delivery of property invoking Rule 95 of Order XXI of the Code of Civil Procedure. That petition was resisted by petitioners on the ground that sale was effected on 27-08-2008 and the same was confirmed on 29-10-2008 but, Ext.P1, E.P.No.64 of 2010 was filed after one year of confirmation of the sale and hence is barred by limitation under Article 134 of the Limitation Act. Grievance of petitioners is that executing court without considering the objection passed Ext.P3, order for delivery of property. 3. I have heard learned counsel for respondent also. It is seen from Ext.P2 that petitioner has raised certain objections regarding maintainability of E.P.No.64 of 2010. Learned counsel O.P(C).No.407 of 2010 : 2 : for petitioner has referred me to various decisions in support of his contention. But, it is not necessary for me to go into that question. Executing court has not decided the question. It is seen from Ext.P3, order that executing court has not considered the objection raised in Ext.P2. In that circumstances Ext.P3, order cannot be sustained and is liable to be set aside. Resultantly this petition is allowed and order dated 19-11-2010 directing delivery of property is set aside. Executing court shall consider Ext.P2, objection and pass appropriate orders after hearing both parties. (THOMAS P JOSEPH, JUDGE) Sbna/-