IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 WP(C).NO. 18097 OF 2010(O) ---------------------------------------- OS.112/2004 OF ADL.SUB COURT, THALASSERY .................... PETITIONER(S): ------------------------ V.A.VASUDEVAN, S/O. APPUKUTTAN, AGED 52 YEARS, BUSINESSMAN, RESIDING AT 'KARTHIKA', DHARMADAM P.O., THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT(S): -------------------------- 1. STATE BANK OF INDIA, THALASSERY BRANCH, REPRESENTED BY ITS ASSISTANT GENERAL MANAGER, THALASSERY, KANNUR DISTRICT. 2. K.M.SIVASANKARAN, PROPRIETOR, UNITED WOOD INDUSTRIES, CHITTARIPARAMBA, RESIDING AT DAS QUARTERS, PONNIAM WEST, THALASSERY TALUK, KANNUR DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.18097 of 2010 ==================================== Dated this the 10th day of June, 2010 J U D G M E N T Respondent No.1 appears through counsel. 2. Worry of auction purchaser/petitioner who happened to take part in the auction conducted by the court below is expressed in this Writ Petition. For the amount due from respondent No.2, respondent No.1 brought the mortgaged property for sale in execution of the decree in O.S. No.112 of 2004 of the court of learned Additional Sub Judge, Thalassery. Public auction was held on 28.1.2010 and petitioner was the highest bidder at Rs.12,01,000/-. He deposited 25% of the said amount, Rs.3,00,250/- within the time specified and on 10.02.2010 he deposited the balance sum of Rs.10,20,850/- and Rs.1,20,100/- being value of non-judicial stamp paper. Thus total amount he deposited is Rs.13,21,100/-. While so respondent No.2 filed petition under Order XXI Rule 89 of the Code of Civil Procedure (for short, “the Code”) to set aside the sale by depositing Rs.10,88,077/- including 5% of bid amount on 24.02.2010. Execution petition was posted on 30.3.2010 for confirmation of W.P(C) No.18097 of 2010 -: 2 :- sale. Respondent No.1 filed Ext.P5, counter stating that more amount is due from respondent No.2/judgment debtor. Learned Sub Judge accepted request of respondent No.2 and has granted two months' time to deposit the balance amount due to respondent No.1/decree holder. The case stands posted to 26.07.2010. Thereon petitioner filed Ext.P6, application for issue of cheque to withdraw the amount he has deposited and 5% of the bid amount together coming to Rs.13,81,150/-. Grievance of petitioner is that he raised the amount by way of bank loan and he is constrained to pay interest at the rate of 12% per annum. But the amount deposited by him is remaining idle in court carrying no interest. That has resulted in loss to the petitioner. Learned counsel contends that what is required to be decided by the executing in the application of respondent No.2 to set aside the sale under Order XXI Rule 89 of the Code is whether respondent No.2 has deposited the amount shown in the sale proclamation less any amount paid after the sale proclamation for payment to respondent No.1/decree holder and sum equal to 5% of the purchase money for payment to the petitioner/purchaser. Learned counsel contends that whether any further amount is due to respondent No.1 as per the decree is not a matter required to W.P(C) No.18097 of 2010 -: 3 :- be considered while deciding the application of respondent No.2 to set aside the sale under Order XXI Rule 89 of the Code. Learned counsel for respondent No.1 asserts that further amount is due from respondent No.2. 3. Amount deposited by petitioner cannot be allowed to remain idle without bearing any interest and thereby resulting in loss to the petitioner. In the circumstances I direct the learned Sub Judge to consider application preferred by respondent No.2 to set aside the sale and dispose of the same as early as possible considering the deposit respondent No.2 had to make to set aside the sale under Order XXI Rule 89 of the Code. Learned Sub Judge shall expedite the disposal of the application preferred by respondent No.2 bearing in mind the loss to which the petitioner is being put. Writ Petition is disposed of as above. THOMAS P. JOSEPH, JUDGE. vsv