IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14064 of 2010(O)
1. OUSEPH JOSEPH, MANIMURI, VADAKKEKKARA
... Petitioner
Vs
1. ANNAMMA THOMAS,D/O.THOMAS, MADATHINAL
... Respondent
For Petitioner :SMT.RUBY K.JOSE
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :30/04/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.14064 of 2010
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Dated this the 30th day of April, 2010.
JUDGMENT
This Writ Petition is filed by the defendant in O.S.No.314 of 1985 seeking
a direction to the learned Munsiff, Changanacherry to dispose of Exts.P6 and P7
and to set aside the auction held on 22.09.1989 and the consequent
confirmation of sale. Respondent, wife of petitioner filed the suit claiming return
of sreedhana amount and other amounts allegedly due to her. According to the
petitioner, in the meantime he was assaulted by the men of respondent and on
account of that, he could not contest the suit properly which ultimately resulted
in an exparte decree on 17.01.1986 for payment of Rs.50,000/- with interest at
the rate of 6% per annum. Respondent put the decree in execution, property of
petitioner – 12 = cents was put in auction and purchased by respondent. Sale
was confirmed in favour of respondent for Rs.19,047/-. In the meantime,
petitioner has approached the court of learned Munsiff with an application to set
aside the exparte decree and an application to condone the delay in filing that
application (Exts.P6 and P7). Learned counsel submits that it was on account of
inability of petitioner to appear in the court on account of attack on him by the
men of respondent that exparte decree happened to be passed. It is contended
by learned counsel that valuable property extending to 12 = cents has been sold
for a paltry sum of Rs.19,047/- .
WP(C) No.14064/2010
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2. It is not disputed that the sale has been confirmed. If there was
any defect in the sale of property, that ought to have been sought to be set aside
as provided under Order 21 of the Code of Civil Procedure and not by way of
invoking jurisdiction of this Court either under Article 226 or 227 of the
Constitution. Therefore request for interference with the auction and its
confirmation as per Ext.P4 cannot be entertained in this Writ Petition.
3. So far as petition to set aside exparte decree and to condone the
delay in filing that application is concerned, the prayer is to direct learned
Munsiff to consider and dispose of the said applications within a time frame to be
fixed by this Court. I am not inclined to think that it is proper to give such a
direction without understanding the volume of work of the court concerned.
However I direct the learned Munsiff to dispose of Exts.P6 and P7, applications
as expeditiously as possible if necessary steps are completed.
With the above direction Writ Petition is dismissed in limine.
THOMAS P.JOSEPH,
Judge.
cks