IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 11TH JANUARY 2011 / 21ST POUSHA 1932 FAO.No. 385 of 2010() -------------------------- OS.415/1994 of ADL.SUB COURT, THALASSERY .................... APPELLANTS/PETITIONERS/3RD PARTY PETITIONERS ---------------------------------------------------------------- 1. ERAYI RAMYA, D/O.GOURI, AZHIKODE AMSOM, DESOM, CHALIL. 2. ERAYI RAGI, D/O.GOURI, AZHIKODE AMSOM, DESOM, CHALIL. 3. ERAYI RAHUL, S/O.GOURI,AZHIKODE AMSOM, DESOM, CHALIL. BY ADVS. SRI.B.KRISHNAN SRI.PARTHASARATHY RESPONDENT(S): RESPONDENTS -------------------------------------- 1. K.ASHOKAN, S/O.ACHUTHAN, KOOKIRI HOUSE, AZHIKODE AMSOM, DESOM, (PO) AZHIKODE,PIN 670 009. 2. E.RAVINDRAN, S/O.KUMARAN, DRIVER, ERAYI HOUSE, AZHIKODE AMSOM, DESOM, P.O. AZHIKODE, PIN 670009. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 11/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs HARUN-UL-RASHID, J. ------------------------ F.A.O.No.385 Of 2010 ---------------------- Dated this the 11th day of January, 2011. J U D G M E N T The appeal is filed challenging the order in E.A.No.573 of 2002 in E.P.No.154 of 1998 in O.S.No.415 of 1994 on the file of the Additional Sub Court, Thalassery. The appellants are petitioners in E.A.No.573 of 2002. The prayer in the application is to set aside the sale held on 25.10.2002. The petitioners are third parties. The execution petition was filed by the decree holder first respondent for realising Rs.39,746/- from the second respondent judgment debtor. Petitioners are the wife and children of the judgment debtor. 2. Earlier the very same petitioners filed E.A.No.198 of 2001 on 19.3.2001 praying to release the property from attachment and sale. The said I.A was dismissed on 18.2.2002. The petitioners filed restoration petition as E.A.No.286 of 2002. The same was also dismissed on 24.10.2002. Subsequently, petitioners preferred C.M.A.No.24 of 2003. The appellate court allowed the appeal on costs. Since the petitioners failed to ::2:: F.A.O.No.385 Of 2010 comply with the order in the C.M.A, the E.A was dismissed for default. The present application is filed after the dismissal of E.A.No.198 of 2001 which has become final. 3. The learned judge considered the present application on merits. The learned judge observed that the petitioners have not produced any evidence to prove that they have right over the property. The learned judge concluded that the gift deed in favour of the petitioners is created to defeat the decree passed against the judgment debtor who is none other than the family head. The court below also held that the petitioners did not adduce any evidence to substantiate their plea of irregularity in the proclamation or subsequent sale. Finding that no evidence was adduced in support of the contentions, the court rightly concluded that E.A is filed to delay the execution and confirmation of sale. In these circumstances, I do not find any reason to entertain the appeal. The matter was considered on merit and found that E.A merits no consideration. Hence the appeal stands dismissed in limine. ::3:: F.A.O.No.385 Of 2010 4. Learned counsel for the appellants expressed the intention of the appellants to pay the decree debt within a reasonable time. The counsel submitted that the appellants are prepared to pay the decree debt within one month from today. In these circumstances, I direct the appellants to move the execution court for appropriate reliefs, if the sale is not confirmed till date. In the result, the appeal stands dismissed in limine with the above observation. HARUN-UL-RASHID, Judge. bkn/-