IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 OP(C).No. 3405 of 2011(O) ------------------------ EA 290/2010 IN EP 194/1997 IN OS.429/1994 OF PRINCIPAL SUB COURT, PALAKKAD .................. PETITIONER: ------------------- RAJAGOPALASWAMY, S/O.NACHUMUTHU KOUNDER RESIDING AT ERUTHEMPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT : ----------------------- THANKAVELU, S/O.NATARAJA KOUNDER, RESIDING AT ERUTHEMPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN-678 558. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 3405 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF EA.290/2010 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD DATED 17/5/2010. EXHIBIT P2: TRUE COPY OF THE ORDER IN EA.290/2010 IN EP.194/1997 IN OS.429/1994 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD DATED 15/7/2010. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.S. TO JUDGE Mn THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3405 of 2011 ==================================== Dated this the 21st day of October, 2011 J U D G M E N T Petitioner is the decree holder in E.P. No.194 of 1997 in O.S. No.429 of 1994 of the court of learned Sub Judge, Palakkad. Petitioner got a decree for recovery of money. Property belonging to the respondent/judgment debtor was attached. According to the petitioner, the same property was attached in E.P. No.52 of 1998 by the brother of petitioner. While so, a third party made a claim over the property under Rule 58 of Order XXI of the Code of Civil Procedure and that claim was allowed. Thereafter the remaining property of respondent was also attached in E.P. No.52 of 1998 and that property was sold in court auction and purchased by another brother of petitioner, in E.P. No.52 of 1998. According to the petitioner, when E.P. No.194 of 1997 came up for hearing the executing court observed that property of judgment debtor has already been sold and there is no possibility of petitioner realizing the amount due under the decree. It is the further case of petitioner that another brother of his, who purchased the property in court auction in. E.P. No.52 of 1998 agreed to pay the O.P(C) No.3405 of 2011 -: 2 :- amount due to the petitioner under the decree and as claimed in E.P.No.194 of 1997. So, on 06.07.2007 counsel for petitioner represented that E.P. No.194 of 1997 is not pressed. Accordingly the execution petition was dismissed as not pressed. But the brother of petitioner later resiled from his promise and refused to pay the amount due under the decree. Hence petitioner filed Ext.P1, application dated 17.05.2010 (almost three years after the dismissal of the execution petition) to review the order dated 06.06.2007. That application was dismissed as per Ext.P2, order which is under challenge. 2. Learned counsel for petitioner made a fervent plea to entertain this Original Petition. It is contended that if a fresh execution petition if filed would be barred by limitation and hence except by way of review of order dated 06.06.2007 there is no possibility of petitioner realizing the amount due to him under the decree. 3. Even as per the submission of learned counsel the 3.25 acres belonging to the respondent was sold in auction in E.P. No.52 of 1998 which is filed by a brother of petitioner and purchased by another brother of petitioner who is said to have offered to pay the amount due to the petitioner in E.P. No.194 of O.P(C) No.3405 of 2011 -: 3 :- 1997. Thus the fact of 3.25 acres of respondent being sold in E.P. No.52 of 1998 was known to the petitioner even at that time. Dismissal of E.P. No.194 of 1997 as not pressed on 06.06.2007 has to be viewed in that circumstance. After 3 years, for the reason that the brother of petitioner resiled from his promise and refused to pay the amount due to him, I am not inclined to think that the executing court should have reviewed the order. I do not find any apparent error in the order or other reason justifying a review. Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv