IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 143 of 2010(O)
1. GEORGE, AGED 68,
... Petitioner
Vs
1. POORAM KURIES (P) LTD.,
... Respondent
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :04/10/2010
O R D E R
THOMAS P.JOSEPH, J.
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O.P(C) NO.143 of 2010
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Dated this the 04th day of October, 2010
J U D G M E N T
Judgment debtor No.2 in E.P. No.390 of 2007 in O.S. No.851
of 2003 of the court of learned Sub Judge, Thrissur is the petitioner
before me. Respondent obtained a decree for money and property
of petitioner was sold in auction on 19.11.2009. Petitioner filed
application under Order XXI Rule 90 of the Code of Civil Procedure
(for short, “the Code”) to set aside the sale on various grounds
stated therein. Grievance of petitioner is that even during
pendency of that application learned Sub Judge has confirmed the
sale against the proviso to Rule 92(1) of Order XXI of the Code. It is
argued by learned counsel that during the pendency of that
application execution petition was closed. Hence this Original
Petition.
2. Learned counsel confirmed that E.A.No.110 of 2010
filed by petitioner under Rule 90 of Order XXI of the Code is
pending consideration of learned Sub Judge and that it was in the
meantime that execution petition was closed. Though the
execution petition is closed it does not affect maintainability of
E.A.No.110 of 2010. Decision in Gopalakrishna Kamath v.
O.P(C) No.143 of 2010
-: 2 :-
R.Bhaskara Rao (1988 [2] KLJ 238) is supportive of that view.
Hence notwithstanding the closure of execution petition it is open
to the petitioner to proceed with E.A. No.110 of 2010.
3. It is seen from the proviso to Rule 92(1) of Order XXI
of the Code that when an application for setting aside the sale is
pending, the sale shall not be confirmed. That is because
confirmation of sale shall be ordered only after disposal of the
application to set aside the sale. That sale has been confirmed
does not affect maintainability of E.A. No.110 of 2010. If
pursuant to the confirmation of sale executing court is taking
steps for issue of sale certificate or allied matter it is open to the
petitioner to seek stay of such proceeding in the executing court if
he is otherwise entitled as provided under law.
With the above observation Original Petition is closed.
THOMAS P. JOSEPH, JUDGE.
vsv