IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 WP(C).No. 317 of 2009(K) ------------------------ AGAINST THE ORDER DATED 24/11/2008 IN E.A.NO.1711/2005 IN E.ANO.1084/2005 IN EP.434/2003 IN OS.1051/2001 of II ADDL.SUB COURT,THRISSUR .................... PETITIONER: --------------- DAVIS, S/O.PALOSE, VADAKKETHALA OUTHADAN HOUSE, KARAMUCK VILLAGE, P.O.KANDASSAMKADAVU, THRISSUR DISTRICT. BY ADV. MR.K.RAMACHANDRAN MR.S.SREEDEV RESPONDENTS: --------------- 1. FEDERAL BANK LIMITED REPRESENTED BY ITS SENIOR MANAGER, P.O.VADANAPPALLY, THRISSUR DISTRICT. 2. A.A.MUHAMMED HANEEFA, S/O.ABOOBACKER, ARAKKAVEETTIL HOUSE, FAROOQ NAGAR, VADANAPPALLY, THRISSUR DISTRICT. 3. M.K.RAMAKRISHNAN, S/O.AYYAPPAKKUTTY, MANANGATH HOUSE, P.O.THALIKULAM, THRISSUR DISTRICT ADV. MR.N.P.SAMUEL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.317 of 2009 - K --------------------------------- Dated this the 15th day of December, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To call for the records leading to Exts.P1 to P6. ii) To set aside Ext.P6 order of the Sub Court, Thrissur in E.A.No.1711/2005 in E.P.No.434/2003 in O.S.No.1051/2001, dated 24.11.2008. iii) To direct the Sub Court, Thrissur to hear and dispose of E.a.No.1084/2005 in E.P.No.434/2003 in O.S.No.1051/2001 on merits and according to law after affording the petitioner a fair and effective opportunity of adducing evidence.” 2. Petitioner has filed a claim petition in the execution proceedings in E.P.No.434 of 2003 in O.S.No.1051 of 2001 on the file of the Sub Court, Thrissur. Over the immovable property proceeded in execution of the decree passed in the above suit he had got a prior attachment in another suit was the basis of the claim set forth by the petitioner in his petition for consideration by the execution court. That application, after enquiry was W.P.(C).No.317 of 2009 - K 2 dismissed. Contending that he was not given sufficient opportunity to establish his claim petitioner preferred a writ petition before this Court as W.P.(C).No.26278 of 2005. That writ petition was disposed holding that his remedy was to file a review petition before the execution court. Pursuant thereto the petitioner moved a review petition seeking review of the order dismissing his claim petition. Pending consideration of that review petition sale of the property attached in the execution proceeded and it was also confirmed. Petitioner, thereupon moved another writ petition as W.P.(C).No.30387 of 2008 to stay further proceedings including the issue of sale sannath on the basis of sale conducted in execution. This Court disposed that writ petition by Ext.P3 judgment directing the execution court to dispose the review petition, expeditiously, and till then keep in abeyance the issuance of the sale sannath and consequential proceedings. The execution court thereafter considered the review petition and after hearing both sides dismissed it vide Ext.P6 order. Propriety and correctness of Ext.P6 order is challenged in the writ petition invoking the supervisory W.P.(C).No.317 of 2009 - K 3 jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. Sufficient opportunity was not provided to the petitioner is the grievance espoused by the learned counsel for the petitioner to assail Ext.P6 order challenged in the writ petition. P6 order is passed by the court below on the review petition filed by the petitioner against the dismissal of his claim petition. As against the dismissal of the claim petition which has been filed under Order XXI Rule 97 of the Code of Civil Procedure, petitioner has a right of appeal as the order passed thereof is deemed to be a decree. When that be so, it is not proper and appropriate for this Court to examine the correctness of Ext.P6 order dismissing his review petition filed against the dismissal of his claim petition. 4. Having regard to the facts and circumstances presented, and as there is noting to indicate that petitioner was not bona fide prosecuting the present writ petition, the time taken during the pendency of the writ petition shall be exempted W.P.(C).No.317 of 2009 - K 4 under Section 14 of the Limitation Act by the court before which appeal, if any, is preferred by the petitioner against the order dismissing his claim petition. Subject to the above observations/direction, the writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-