IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 WP(C).NO. 20304 OF 2010(O) -------------------------- AS.30/2010 OF DISTRICT COURT,THODUPUZHA OS.150/2001 OF MUNSIFF .COURT,THODUPUZHA .................... PETITIONER(S): --------------- MATHEW JOSEPH, S/O. JOSEPH, AGED 62 YEARS, CHETTIPARAMBIL HOUSE, NEYYASSERY KARA, NEYYASSERY VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.ANIL GEORGE SRI.K.S.SUMEESH RESPONDENT(S): --------------- 1. RAMESH BABU, S/O. RAMAN NAIR, THOPPIL HOUSE, KARIMANNOOR KARA, KARIMANNOOR VILLAGE, PIN-678 597. 2. AMMUKUTTY, W/O. GOPALAN NAIR, VADAKKEOLICKAL HOUSE, NEYYASSERY KARA, NEYYASSERY VILLAGE, PIN-685 581. 3. MINIMOL, D/O. GOPALAN NAIR, VADAKKEOLICKAL HOUSE, NEYYASSERY KARA, NEYYASSERY VILLAGE, PIN-685 581. 4. MAYA, D/O. GOPALAN NAIR, VADAKKEOLICKAL HOUSE, NEYYASSERY KARA, NEYYASSERY VILLAGE, PIN-685 581. 5. BINDU, D/O. GOPALAN NAIR, VADAKKEOLICKAL HOUSE, NEYYASSERY KARA, NEYYASSERY VILLAGE, PIN-685 581. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.20304 of 2010 ==================================== Dated this the 30th day of June, 2010 J U D G M E N T Exhibit P1, order dated 17.5.2010 on I.A. No.138 of 2010 in A.S. No.30 of 2010 of the court of learned District Judge, Thodupuzha is under challenge in this Writ Petition at the instance of petitioner. Respondent No.1 filed O.S. No.150 of 2001 in the court of learned Munsiff, Thodupuzha against deceased judgment debtor for recovery of money and on 26.09.2001 property belonging to the judgment debtor was placed under attachment. Suit ended in a decree in favour of respondent No.1. In the meantime on 18.10.2006 petitioner purchased the property from the legal representatives of the deceased judgment debtor. Claiming title and that he is a bona fide purchaser for consideration without notice of the attachment petitioner filed E.A. No.110 of 2009 in the executing court. Evidence was recorded on that application. Executing court held that petitioner is not a bona fide purchaser in that even before purchase fact of attachment had been conveyed to the Sub Registrar concerned as revealed from Ext.B1. Application was dismissed. Petitioner W.P(C) No.20304 of 2010 -: 2 :- challenged that order in A.S. No.30 of 2010 in the court of learned District Judge, Thodupuzha and filed I.A.No.138 of 2010 for stay of sale of the property. Though appeal was taken on file and notice was issued to the respondents therein, application for stay was dismissed by Ext.P1, order stating that petitioner has no locus standi to file claim petition under Order XXI Rule 58 of the Code of Civil Procedure (for short, “the Code”), it is filed out of time and that assignment in favour of petitioner after the attachment is void. That order is under challenge in this Writ Petition. Learned counsel for petitioner contended that petitioner has valid grounds to be urged in the appeal and the appeal itself having been admitted on file appellate court was not justified in refusing to grant stay as prayed for. Learned counsel states that the property is scheduled for sale on 03.07.2010 in the executing court. 2. Mere fact that appeal has been taken on file does not ipso facto mean that stay as prayed for ought to have been granted. Order XLI Rule 5 of the Code states that stay need be granted only when appellate court is satisfied that there is “sufficient cause” made out. However, fact remained that in this case learned District Judge has chosen to admit the appeal and W.P(C) No.20304 of 2010 -: 3 :- issue notice to the respondents. Learned counsel states that respondents have appeared in the appeal and that the appeal itself could be disposed of within a short time. If in the meantime the property is sold petitioner will be put to irreparable loss and injury. Having regard to the facts and circumstances of the case including the fact that appeal has been admitted for consideration, respondents therein have appeared and the appeal itself could be disposed of within a short time I am inclined to think that proceedings for sale of property can be kept in abeyance for sometime but subject to conditions. Resultantly, this Writ Petition is disposed of in the following lines: (i) Proceeding for sale of the property in execution of decree in O.S. No.150 of 2001 of the court of learned Munsiff, Thodupuzha will stand in abeyance for a period of one month from this day or until A.S.No.30 of 2010 is disposed of by the learned District Judge, whichever is earlier on condition that petitioner deposited in the executing court Rs.52,250/- (Rupees Fifty two thousand two hundred and fifty only) within two weeks from this day. (ii) I direct learned District Judge, Thodupuzha to dispose of A.S. No.30 of 2010 if steps W.P(C) No.20304 of 2010 -: 4 :- are over, within one month from the date of receipt of a copy of this judgment. Registry is directed to send a copy of this judgment to learned District Judge, Thodupuzha also for compliance. THOMAS P. JOSEPH, JUDGE. vsv