IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35112 of 2008(E)
1. MANI.K.K, AGED 61 YEARS, S/O.LATE KORAN,
... Petitioner
Vs
1. BRAHMAKULAM ST.THOMAS CHURCH WELFARE
... Respondent
For Petitioner :SRI.A.X.VARGHESE
For Respondent :SRI.A.C.DEVASIA
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :23/01/2009
O R D E R
K.P. Balachandran, J.
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W.P.(C)No.35112 of 2008 E
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JUDGMENT
Petitioner is the first judgment debtor in
E.P.No.131/95 in O.S.No.271/93 on the file of the
Munsiff’s Court, Wadakkancherry. In execution of
the decree in the said suit, the property belonging
to the second judgment debtor, who is the mother of
the first judgment debtor, was sold in court
auction for an amount of Rs.60,000/- on 20.2.1997.
It is submitted that the purchaser is the decree
holder themselves.
2. Counsel for the petitioner submits that
after the sale on 20.2.1997, the second judgment
debtor, who is the mother of the petitioner/first
judgment debtor, died on 22.10.2003 and that even
during her life time, the sister of the petitioner
one Kuttimalu filed E.A.No.50/97 in E.P.No.131/95
aforesaid for setting aside the sale. The learned
Munsiff dismissed the said execution application.
The dismissal was challenged by Kuttimalu, the
WPC 35112/08 2
petitioner in E.A.No.50/97, filing C.R.P.No.228/99
before this Court. It is submitted that the
counsel, who is now appearing for the petitioner/
first judgment debtor in this writ petition was the
same counsel who appeared for his sister Kuttimalu
in C.R.P.No.228/99 and that the said revision
petition was dismissed consequent on the counsel
reporting “no instructions”. Thereafter, E.A.No.
635/08 was filed by the petitioner to set aside the
auction sale along with E.A.No.634/08 for condoning
the delay in filing the said application and also
E.A.No.636/08 for staying the delivery of the
property sold to the respondent in execution of the
decree. It is submitted that the learned Munsiff
posted all the above execution applications to
27.11.2008, which is complained to be with a view
to curtail the legal rights of the petitioner/first
judgment debtor. What he means is that no orders
are passed by the court below on the said
applications. But, it is before the said posting
WPC 35112/08 3
date of 27.11.2008 that the petitioner/first
judgment debtor has filed this writ petition on
26.11.2008.
3. I fail to understand why the petitioner, who
has filed three applications in the court below,
has approached this Court before the court below
passing any orders on those applications. The
prayer in this writ petition is to direct the
learned Munsiff, Wadakkancherry to keep in abeyance
all further proceedings in O.S.No.271/93 till the
final disposal of E.A.Nos.634/08, 635/08 and 636/08
in E.P.No.131/95 and to direct the learned Munsiff
to give direction to the respondent for taking
steps to implead the legal heirs of deceased second
defendant in O.S.No.271/93 aforesaid.
4. Counsel for the petitioner submits that the
only legal heirs of the second defendant are the
present petitioner and his sister Kuttimalu, who
filed E.A.No.50/97, which met with its end by
dismissal of C.R.P.No.228/99 consequent on the
WPC 35112/08 4
petitioner’s counsel, who was appearing for her
before this Court, reporting “no instructions”.
Counsel for the petitioner further submits that in
view of the interim stay ordered by this Court, as
prayed for by the petitioner, all proceedings in
execution of O.S.No.271/93 now stand stayed. That
means, E.A.Nos.634/08, 635/08 and 636/08 are
pending and the learned Munsiff is disabled from
passing orders thereon.
5. The learned Munsiff is directed to pass
appropriate orders on those applications forthwith.
This writ petition is dismissed. Transmit a copy
of this judgment to the court below forthwith.
Counsel for the respondent is also permitted to
produce a copy of this judgment in the court below
to expedite the matter. Issue copy of this judgment
to the counsel for the respondent urgently.
23rd January, 2009 (K.P.Balachandran, Judge)
tkv