IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 OP(C).No. 2524 of 2011(O) --------------------------------- AGAINST THE ORDER DATED 20/07/2011 IN EP.56/2009 IN OS.162/2008 of SUB COURT, CHENGANNUR ........................................................... PETITIONER: ------------------ DR.LATHIKA.V.S,AGED 60 YEARS, W/O.KARUNAKARAN,KARTHIKA HOUSE,KARAKKADU MURI, CHENGANNUR TALUK. BY ADV. SRI.N.ASHOK KUMAR RESPONDENT(S): ------------------------ 1. M.P.AJIMON,S/O.M.K.PRAKASAN, MULANILKUNNATHIL VEETTIL,KARAKKAD MURI, MULAKKUZHA VILLAGE,CHENGANNUR TALUK,PIN-689505. 2. THE FEDERAL BANK LTD,MULAKKUZHA BRANCH, REPRESENTED BY ITS MANAGER,MULAKKUZHA BRANCH, MULAKKUZHA.P.O,CHENGANNUR,PIN-689505. R2 BY ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:\ STU OP(C).No. 2524 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF DECREE IN O.S.162/08 SUB COURT, MAVELIKKARA DTD 09/01/2009. P2 : COPY OF EXECUTION PETITION IN E.P.56/09 IN O.S.162/08 DTD 20/11/09 SUB COURT, MAVELIKKARA. P3 : COPY OF DECREE IN O.S.80/09 SUB COURT, CHENGANNUR DTD 25/05/2010. P4 : COPY OF CLAIM PETITION DTD 16/07/2011 IN E.P.56/09 IN O.S.162/08 SUB COURT, MAVELIKKARA. P5 : COPY OF ORDER DTD 20/07/2011 IN E.P.56/09 IN O.S.162/2008 OF SUB COURT, MAVELIKKARA. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// STU P.A TO JUDGE. THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.2524 of 2011 --------------------------------------- Dated this 27th day of October, 2011 JUDGMENT Petitioner is the decree holder in E.P.No.56 of 2009 in O.S.No.162 of 2008 of the Court of learned Sub Judge, Chengannur. Petitioner is executing a decree for money she has obtained against the first respondent. She has attached the property of first respondent before judgment and has attempted to bring up the property for sale. At that stage the second respondent in whose favour the same property had been mortgaged by the first respondent as security for a loan transaction filed O.S.No.80 of 2009 impleading petitioner also as a defendant and obtained Ext.P3, decree on 25.05.2010. In E.P.No.56 of 2009 petitioner has not been impleaded as a party notwithstanding the mortgage in favour of the second respondent. Second respondent filed Ext.P4, application claiming right over the property on the strength of the mortgage and decree. Learned Sub Judge passed Ext.P5, order staying the proceeding till petitioner cleared the dues of the second respondent and posted the case to be called on 20.08.2011. Ext.P5, order is under challenge. I have heard learned counsel O.P(C).No.2524 of 2011 -: 2 :- for petitioner and the second respondent. 2. It is revealed that the second respondent has initiated proceeding under the SARFACI Act (for short, "the Act”) for sale of the property. According to the learned counsel, notwithstanding pendency of execution proceeding, it is within the right of the second respondent to move under the said Act and bring the property to public auction. 3. Learned counsel for petitioner requested that petitioner is prepared to take part in the public auction that may be conducted at the instance of the second respondent. But, it is requested that second respondent may be directed to intimate petitioner also about the proposed public auction. Learned counsel for the second respondent has no objection in giving such intimation provided that such intimation will not give any preferential right to the petitioner over the property or in the public auction. I am sure, intimation of public auction to petitioner would not give any such preferential claim or right to the petitioner. 4. Having regard to the circumstances stated, it is directed that in case the second respondent opts for public auction of the property under the Act, the second respondent O.P(C).No.2524 of 2011 -: 3 :- shall intimate the date and time of such public auction to the petitioner by registered post in the address shown in this original petition. It is made clear that such intimation will not give any preferential claim or right for the petitioner over the property in question or in the matter of public auction. Petitioner may request the executing court to keep its proceeding in abeyance for the time being in view of the above direction. This original petition is closed with the above direction. (THOMAS P. JOSEPH, JUDGE) Sbna/-