IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 OP(C).NO. 3635 OF 2011() ------------------------------------- OS.304/2003 OF ADDITIONAL SUB COURT, KOZHIKODE PETITIONER: -------------------- SOOPY, S/O.MOOSAKUTTY, CHEMBAKASSERY HOUSE, PUTHOORVATTOM, BALUSSSERY, KOZHIKODE DISTRICT. BY ADV. SRI.JOBY JACOB PULICKEKUDY SRI.ANIL GEORGE SRI.K.S.SUMEESH RESPONDENT(S): --------------- 1. A.N. GOPINATHAN, S/O.SHEKHARAN, POOKOTH HOUSE, P.O., NEDUVATHOOR, KOILANDY TALUK, KOZHIKODE DISTRICT, PIN 673 330. 2. K. RAJAGOPALAN NAIR, S/O.KUNHIKANNAN NAIR, KULLIYIL HOUSE, VIYYUR, KOILANDY TALUK, KOZHIKODE DISTRICT, PIN 680 010. 3. M. RAJEEV KUMAR, S/O.BALAKRISHNAN NAIR, ARCHANA APARTMENTS, ERANJIPALAM, KOZHIKODE DISTRICT, PIN 673 006 4. BASHEER, S/O.AMMED, NAGATHUKANDY, KOILANDY, KOZHIKODE DISTRICT, PIN 673 006. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.3635 OF 2011 APPENDIX PETITIONER(S)' EXHIBITS: EXHIBIT P1 TRUE PHOTOCOPY OF THE SALE DEED NO.2388/2009 DATED 27.11.2009. EXHIBIT P2 TRUE PHOTOCOPY OF THE PRIOR DOCUMENT OF THE PETITIONER. EXHIBIT P3 TRUE PHOTOCOPY OF THE AFFIDAVIT SUBMITTED BY RESPONDENTS 3 AND 4 RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S. TO JUDGE THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3635 of 2011 -------------------------------------- Dated this the 8th day of November, 2011. JUDGMENT Though, in this Original Petition challenge is to an order passed by the learned Sub Judge-I, Kozhikode under Section 144 of the Code of Civil Procedure - for short, “the Code” (as I am told), in O.S.No.304 of 2003. Now the request is to direct issue a copy of the order. It is submitted by the learned counsel that 1st respondent filed the suit for recovery of money against the 2nd respondent and got an exparte decree. Pursuant to that, the 1st respondent executed the decree, brought the property of 2nd respondent for sale and it was purchased in court auction by a third party. Later the auction purchaser assigned the property to certain other persons from whom petitioner claims to have acquired title and possession of the said property. It is submitted that after purchase effected by the petitioner, 2nd respondent challenged the exparte decree in O.S.No.304 of 2003 in appeal with an application to condone the delay, that delay was condoned and the appeal was allowed by way of remand. Thereafter respondents 1 and 2 settled the dispute. That was followed by the 2nd respondent/defendant filing an application for restitution of property under Sec.144 of the Code. Learned counsel submitted that the said application was not objected by the 1st respondent/plaintiff and was allowed by the learned Sub Judge as per the impugned order. Petitioner has applied for a copy of the said order but he has not so far received it. It is submitted that petitioner is not made OP(C)No.3635/2011 2 a party to the proceeding under Sec.144 of the Code. It is also submitted by the learned counsel that since property was purchased by a third party in court auction much before the 2nd respondent filed appeal against the exparte decree, purchase made by the auction purchaser is not affected by the subsequent reversal of the decree and hence title and possession of the petitioner is also protected since he is a bona fide purchaser without notice of the proceedings and since according to the petitioner, even the appeal with application to condone the delay was preferred by the 2nd respondent only after purchase by the petitioner. 2. Though in the Original Petition the prayer is to set aside the order under Sec.144 of the Code, learned counsel, in view of Sec.2(2) of the Code submitted that petitioner intends to challenge the impugned order by way of appeal. But, in the meantime, steps are being taken to dispossess petitioner. It is therefore, prayed in this Original Petition that a direction may be issued to the learned Sub Judge-I, Kozhikode to issue a copy of the order under Sec.144 of the Code, if applied for and in the meantime, dispossession of petitioner may be kept in abeyance. 3. Having regard to the contentions raised I am inclined to treat this Original Petition as one for a direction to the learned Sub Judge-I, Kozhikode to issue a copy of order under Sec.144 of the Code in O.S.No.304 of 2003. Resultantly this Original Petition is disposed of as follows: OP(C)No.3635/2011 3 i. Learned Sub Judge-I, Kozhikode is directed to issue a copy of order under Sec.144 of the Code in O.S.No.304 of 2003, if applied for by the petitioner subject to the relevant rules in this regard and, usual terms as to cost within a week from that date of production of a copy of this judgment. ii. It is directed that petitioner shall not be dispossessed from the property which was the subject matter of the court auction sale until the expiry of ten (10) days from the date notified for delivery of a copy of the order above referred. THOMAS P.JOSEPH, Judge. cks