IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12863 of 2010(O)
1. P.D. ANTONY JOSHUA,
... Petitioner
Vs
1. INDIAN BANK, HEAD OFFICE AT 31
... Respondent
2. MR.K.M. ANWAR SADATJH,
For Petitioner :SRI.DEVAN RAMACHANDRAN
For Respondent :SRI.A.S.SAJUSH PAUL
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :07/10/2010
O R D E R
THOMAS P.JOSEPH, J.
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W.P(C) No.12863 of 2010
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Dated this the 07th day of October, 2010
J U D G M E N T
This Writ Petition is at the instance of judgment debtor No.1
in E.P.No.404 of 2004 in O.S. No.708 of 1996 of the court of
learned Principal Sub Judge, Ernakulam. For the amount due to
respondent No.1-decree holder property of petitioner was brought
up for sale. At that stage petitioner filed E.A. No.128 of 2010
under Rule 69 of Order XXI and Section 151 of the Code of Civil
Procedure (for short, “the Code”) to adjourn the sale for a further
period of one month (obviously for payment of the amount due
under the decree). That application was dismissed by the learned
Sub Judge as per Ext.P3, order on 11.02.2010. That was followed
by Ext.P4, order as per which property was sold on 11.02.2010 for
Rs.6,00,000/- and execution petition was posted for confirmation of
sale on 12.04.2010. Exhibits P3 and P4, orders are under
challenge in this Writ Petition.
2. Though various grounds are urged in the petition in
challenge of the sale and though it is contended by learned
counsel for respondent No.1 that no application to set aside sale as
contemplated under Order XXI of the Code was preferred by the
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petitioner in the executing court and hence this petition itself is
not maintainable, counsel for petitioner, counsel for respondent
No.1 and counsel for respondent No.2-auction purchaser (who
already deposited a portion of the bid amount in the executing
court) have now come to terms after consultation with parties
concerned and accordingly they have settled the terms between
them. Accordingly petitioner has to pay the entire decree amount
as on the date of sale, i.e., 11.02.2010 (less the amount if any
already paid) to respondent No.1-decree holder within a week
from this day. So far as the claim of respondent No.2-auction
purchaser is concerned he is willing to give up his claim for the
property purchased by him in auction if petitioner pays a
consolidated sum of Rs.65,000/- towards interest and costs within
a week from this day. It is also agreed between the parties that
the amount deposited by respondent No.2 in the executing court
pursuant to his bid in the auction can be withdrawn by him.
Submission made by counsel on both sides is accepted and
recorded.
Resultantly, Writ Petition is disposed of in the following lines:
(a) Sale conducted by the executing court on
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11.02.2010 shall stand set aside on fulfillment of the
following conditions:
(i) Petitioner shall pay the
entire decree amount as on the date
of sale, i.e., 11.02.2010 (less the
amount if any already paid) to
respondent No.1 within a week from
this day as above stated.
(ii) Respondent No.1 shall
file a statement in the executing
court within a further period of one
week from the date of receipt of
money.
(iii) Petitioner shall deposit a
consolidated sum of Rs.65,000/-
(Rupees Sixty five thousand only) in
the executing court for payment to
respondent No.2 being costs and
interest on the amount deposited by
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respondent No.2 in the executing
court within a period of one week
from this day.
(iv) On compliance of the
above conditions it will be open to
respondent No.2 to withdraw the
amount mentioned in clause (iii) and
the amount he already deposited in
the executing court.
(v) On compliance of
condition Nos.(i) to (iii) the sale held
by the executing court on
11.02.2010 will stand set aside.
(vi) In case condition Nos.(i)
and (iii) are not complied with as
aforesaid this petition will stand
dismissed.
(b) Respondent No.1 shall on receipt of the
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amount and along with filing of the statement report
full satisfaction of the decree to the executing court so
that the execution petition can be closed.
THOMAS P. JOSEPH, JUDGE.
vsv