IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 WP(C).No. 32033 of 2006(L) --------------------------------------- AGAINST THE ORDER DATED / / IN EA.84/04EA.362/02 IN OS.12/1988 of SUB COURT, CHERTHALA .................... PETITIONER(S): --------------------- DASAN PILLAI, S/O.SREEDHARAN PILLAI, THEKKEKOONAMMAKKIL, CHERTHALA SOUTH VILLAGE. BY ADV. MR.D.SOMASUNDARAM RESPONDENT(S): ------------------------- 1. CHONAPPALLIYIL ENTERPRISES, K.R.PURAM P.O., PALLIPPURAM, REP. BY ITS MANAGING PARTNERS BEING THE RESPONDENTS 2 TO 6. 2. C.G.SUDHEESH, S/O.C.G.BHASKARAN, GOVINDALAYAM, K.R.PURAM P.O., PALLIPPURAM. 3. C.K.SASIDHARAN, S/O.C.G.KUMARAN, CHONAPPALLIYIL, K.R.PURAM P.O. 4. K.S.SANALKUMAR, S/O.BALAKRISHNAN, CHONAPPALLIYIL, K.R.PURAM P.O. 5. B.MOYHANAN, S/O.C.G.BHASKARAN, GOVINDALAYAM, K.R.PURAM P.O. 6. M.G.PRASANNAN, S/O.C.G.GOPALAN MATHATHU, CHIRAYIL, K.R.PURAM P.O. 7. C.G.GOPALAN, MATTATHUCHIRA, K.R.PURAM P.O. 8. AMBUJAKSHI BALAKRISHNAN, CHONAPPALLIL, K.R.PURAM P.O., PALLIPPURAM. 9. SUSHAMA ASHOK RAJ, GOVINDALAYAM, K.R.PURAM P.O., PALLIPPURAM. 10. SUJATHA, W/O.CHITHRABHANU, GOVINDALAYAM, K.R.PURAM P.O., PALLIPPURAM. 11. P.K.CHITHRABHANU, GOVINDALAYAM, K.R.PURAM, PALLIPPURAM. 12. N.BALAKRISHNAN, S/O.NANU, CHONAPPILLIL, K.R.PURAM P.O., PALLIPPURAM. 13. THE FEDERAL BANK LTD., POOCHAKKAL BRANCH, REP. BY ITS MANAGER. 14. PRASANNAN, CHAKKRACHIRAYIL, PALLIPPURAM P.O., CHERTHALA. 15. SULOCHANA, VIDYAVIHAR, TOLL JUNCTION, CHEMBU, VAIKOM. 16. SUDHAMONY, W/O.ADV. P.S.ANILKUMAR, AMBALAKATTUCHIRA, VAYALAR P.O. 17. LEELA GOPINATHAN, AMBALAKATTUCHIRA, VAYALAR P.O., CHERTHALA. 18. K.R.MANOJ, KALATHIPARAMBIL, PATTANAKKAD P.O., CHERTHALA. ADV. MR.A.ANTONY FOR 13 SMT.LEELAMMA ANTONY FOR R13 MR.K.RAMAKUMAR, SENIOR ADVOCATE FOR R18 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/02/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.32033/2006 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE E.A. 362/02 DT. 11.8.03 FILED BEFORE THE SUB COURT, CHERTHALA. P2:- COPY OF THE E.A. 84/04 DT. 28.2.04 FILED BEFORE THE SUB COURT, CHERTHALA. P3:- COPY OF THE ORDER IN EA. 84/04 IN OS. NO.12/88 OF THE SUBORDINATE JUDGE'S COURT, CHERTHALA. /TRUE COPY/ P.A. TO JUDGE tss HARUN-UL-RASHID,J. --------------------------- W.P.(C).NO.32033 OF 2006 ---------------------------- DATED THIS THE 3RD DAY OF FEBRUARY, 2009 JUDGMENT This writ petition is filed by the petitioner, who is a purchaser of the property in a revenue sale. The prayer in this writ petition is to set aside the order of the court below in E.A.No.84/2004 in O.S.No.12/88 on the file of the Sub Court, Cherthala. 2. O.S.No.12/88 is a suit filed by the 13th respondent as plaintiff for a decree for money on the basis of the mortgage deed. In execution of the decree, the property belonging to the judgment debtor was put to auction sale, the 18th respondent herein is the bidder in the court auction, the sale took place on 11/7/1994 and the property was delivered to him. 3. The writ petitioner, who is the third party to the suit, filed E.A.No.3762/02 stating that he had purchased the very same property in the auction conducted under the Revenue Recovery -2- W.P.(C).No.32033/2006 Act. The case of the petitioner herein is that the Government had first charge over the property and that the property was proclaimed for sale by the Revenue Authorities under the Revenue Recovery Act. On 23/8/1995 the petitioner purchased the property for a sum of Rs.1,80,000/- in public auction conducted by the Revenue Authorities, the sale was confirmed and delivery effected on 22/12/1997. It is further alleged in the writ petition that the 18th respondent, who is the auction purchaser, dispossessed the petitioner on 21/10/2003, that the petitioner is the title holder and therefore the said E.A. was filed for re-delivery. 4.The said E.A. was posted for evidence on 24/2/2004. Since there was no appearance for the petitioner, the E.A. was dismissed for default. The petitioner further stated in the E.A. that though there was a posting on 25/2/2004, he could not appear on that day, since the said posting date was not known to him. E.A.No.84/2004 is filed for restoration of -3- W.P.(C).No.32033/2006 E.A.No.326/02 dismissed for default. The matter was seriously opposed by the 18th respondent. The petitioner did not adduce any supporting evidence either oral or documentary. The court below examined the facts and circumstances leading to the dismissal of the said E.A. and the further development leading to the filing of the petition for restoration. The court below held that the case was not properly prosecuted by the petitioner and no enquiry was made at the appropriate time, which resulted in the dismissal of the petition. The court below concluded that there is laches on the part of the petitioner himself and therefore no reasons are made out to restore the application to file. 5. The petitioner is not a party in the suit or in the execution proceedings. In execution of the decree an item of property was put to sale and the 18th respondent herein purchased the property in court auction and subsequently sale certificate was issued and delivery was effected. E.A. filed by a third party for re-delivery is a petition, which cannot be entertained by an -4- W.P.(C).No.32033/2006 execution court. For the reasons stated above, I find no reason to interfere with the order passed by the court below. Writ Petition fails and accordingly dismissed without prejudice to the right of the petitioner to approach before the appropriate Forum for redressal of his grievances. HARUN-UL-RASHID, Judge. kcv.