IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 WP(C).No. 16517 of 2008(N) -------------------------------------- E.A.95/08 IN E.P.103/03 IN OS.101/2001 of SUB COURT, OTTAPPALAM .................... PETITIONER: ------------------- C.A. UNNIKRISHNAN, AGED 44 YEARS, S/O. APPU GUPTHAN, CHEMPANEPADATH HOUSE, ELUMBULLASSERRY.P.O, OTTAPALAM, PALAKKAD. BY ADV. SRI.SAJEEV KUMAR K.GOPAL RESPONDENTS: ----------------------- 1. ANDHRA BANK, PALAKKAD, REP. BY ITS BRANCH MANAGER 2. SAMUEL T. JOHN, S/O. JOHN, AGED 40 YEARS, NAZRETH ANGADI, NELLIKKUNNU, TRICHUR TALUK. BY ADV. SRI.V.R.KESAVA KAIMAL - R2 SRI.N.M.MADHU - R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.9C).16517/2008-N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C).7262 OF 2007. EXT.P2: COPY OF E.A.373 OF 2007. EXT.P3: COPY OF THE EXECUTION PETITION E.P.103 OF 2002. EXT.P4: COPY OF THE NOTICE ISSUED FROM THE SUB COURT, OTTAPALAM. RESPONDENT'S EXHIBITS: EXT.R2(a): CERTIFIED COPY OF THE FORM 58. // TRUE COPY // Rs/ M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO. 16517 OF 2008 ------------------------------------------ Dated this the 8th day of July, 2008 JUDGMENT Petitioner is the judgment debtor. First respondent is the decree holder and second respondent the auction purchaser. This petition is filed under Article 227 of Constitution of India to quash Ext.P1 order dismissing the application filed by the petitioner to set aside the sale. 2. Learned counsel appearing for petitioner and respondents were heard. 3. Ext.P3, the execution petition, shows that it was posted for proclamation and sale to 8.10.2007 and the property was sold on 8.10.2007 and posted for confirmation of sale to 10.12.2007 and sale was also confirmed on 10.12.2007. Ext.P2 petition filed to set aside the sale on 10.12.2007 was dismissed as follows:- “ Petition received after confirmation of sale made. Petition dismissed” The argument of the learned counsel appearing for petitioner is WPC 16517/08 2 that the executing court should not have been dismissed the application without considering the merit and therefore the order is to be quashed and the petition is to be remanded for fresh disposal. Learned counsel appearing for first respondent/decree holder and second respondent/auction purchaser argued that no purpose will be served by remanding the petition as the petition was filed beyond the period of 60 days and there is no material irregularity in the sale. It was also argued that the petition is not filed under Rule 90 of Order XXI of Code of Civil Procedure. As rightly pointed out by the learned counsel appearing for petitioner, though Section 151 is quoted in the petition, the prayer shows that it is a petition to set aside the sale alleging material irregularity in conducting the sale and it could only be treated as a petition filed under Rule 90 of Order XXI of Code of Civil Procedure. When the petition under Rule 90 is filed, learned Sub Judge was not justified in dismissing the application without considering the application on merits for the reason that the sale was confirmed. In such circumstances order dismissing E.A. 373/2007 is quashed. E.A. 373 of 2007 is remitted to Sub Court, Ottapalam for fresh disposal in WPC 16517/08 3 accordance with law. Executing court is directed to dispose the application as expeditiously as possible at any rate within four months from the date of receipt of the judgment. It is made clear that executing court is competent to dismiss the application if it is barred by time. Writ petition is disposed of as above. M. SASIDHARAN NAMBIAR, JUDGE Okb/-