IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 1027 of 2002(A)
1. BALAN S/O. MURUKANDI,
... Petitioner
Vs
1. BABY, S/O. PAILY, ERUKKINCHIRA,
... Respondent
2. V.K. SUBHASH, S/O. KRISHNANKUTTY,
For Petitioner :SRI.SAJAN VARGHEESE K.
For Respondent :SRI.P.HARIDAS
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :01/08/2007
O R D E R
PIUS C. KURIAKOSE,J.
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C.R.P.Nos.1027 & 1039 of 2002
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Dated: 1st August, 2007
ORDER
C.R.P.No.1039 of 2002 is instituted by the judgment-debtor
against the order in E.A.No.619/2000 which was an application filed
by the petitioner under Sections 47 and 151 of the C.P.C. seeking to
set aside the order of sale on the ground that there has been material
irregularities and fraud in the matter of conduct of sale. In fact the
petitioner himself had filed E.A.No.332/2000 under Order XXI Rule 89
for setting aside sale after making requisite deposit. But
E.A.No.332/2000 was not filed on time. For condoning the delay of
one day caused in the matter of E.A.No.332/2000, the petitioner had
filed E.A.No.571/2000. Under the impugned order the learned
Subordinate Judge dismissed E.A.Nos.332, 571 and 619 of 2000 by
passing a common order. C.R.P.No.1027/02 is instituted by the
judgment-debtor against the order in E.A.No.571/2000.
2. Heard Mr.Sajan Varghese, learned counsel for the petitioner,
Mr.O.Ramachandran Nambiar, counsel for the 2nd respondent and
Smt.C.R.Saradamani, counsel for the 1st respondent.
3. On going through the impugned order what I notice is that
the learned Subordinate Judge after finding that E.A.No.571/2000
C.R.P.Nos.1027 & 1039/02 – 2 –
was not maintainable in law since the execution court had no power
at all for condoning the delay caused in the matter of filing execution
application, decides to dismiss that application and dismiss the other
two applications also in view of the decision taken in E.A.No.571 of
2000. The maintainability of an application under Section 47 like the
present one (E.A.No.619/2000) is not seen considered independently
by the learned Subordinate Judge. According to me, notwithstanding
the learned Subordinate Judge’s decision on the delay petition,
E.A.No.619/2000 could have been considered or the learned
Subordinate Judge could have at least assigned reasons as to why the
petitioner is not entitled to relief in E.A.No.619/2000. As for the
decision to dismiss E.A.No.571/2000, the learned Subordinate Judge
cannot be blamed. However since E.A.No.619/2000 was liable to be
independently considered since the petitioner can have an arguable
case that the issue arises within the scope of Section 47 C.P.C.
4. I set aside the order which is impugned in
C.R.P.No.1039/2002 and allowing that C.R.P. directing the learned
Subordinate Judge to take a fresh decision on E.A.No.619/2000 after
hearing both sides. The parties will be permitted to adduce evidence
C.R.P.Nos.1027 & 1039/02 – 3 –
in support of their rival contentions in the E.A. As for order which is
impugned in C.R.P.No.1027 of 2002 since the view of the learned
Subordinate Judge cannot be found faulty, the same will stand
approved and that C.R.P. will stand dismissed.
5. I also clarify that I have not stated anything finally regarding
the merits/maintainability of E.A.No.619/2000.
srd PIUS C.KURIAKOSE, JUDGE