IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 13913 of 2009(O)
1. ASHARAF,S/O.PUZHAKARAYILATH ABDU,
... Petitioner
Vs
1. MANOHARAN,S/O.MADATHINGAL KUMARAN,
... Respondent
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :17/07/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.13913 of 2009 - O
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Dated this the 17th day of July, 2009
J U D G M E N T
The judgment debtor in E.P.No.134/2001 in O.S.No.455/95
on the file of the Principal Sub Court, Irinjalakkuda has filed this
writ petition seeking the following reliefs:
“i) To call for the entire records which lead to Ext.P5
order and issue an order or direction quashing the
same.
ii) To issue an order or direction allowing
E.A.No.959/2007 and E.A.No.139/2004 in
E.P.134/2001 in O.S.No.455/1995 on the file of the
Subordinate Judge’s Court, Irinjalakkuda.”
2. The case in brief is that towards satisfaction of the
decree debt in a suit for money, on the steps taken by the decree
holder, property of the coobligant to the transaction, second
judgment debtor, wife of the petitioner, who is not made as a
party in the present petition was brought to sale. To set aside
the sale, the petitioner moved an application under Order XXI
Rule 90 CPC. That application was dismissed and the sale was
W.P.(C).No.13913 of 2009 – O
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confirmed. Petitioner, thereupon moved a writ petition before
this Court, which was also dismissed. Subsequently he moved a
review petition, on which this Court passed an order that it would
be open to the petitioner to seek restoration of the application
moved to set aside the sale, which was dismissed for default, and
the period spent before this Court in prosecuting the writ petition
and also the review petition, could be canvassed for exemption
under Section 14 of the Limitation Act. Pursuant thereto,
petitioner moved an application before the court below for
restoration of the application moved for setting aside the sale
seeking condonation of the period in filing that application. The
execution court after examining the records found even after
condoning the period during which the petitioner prosecuted the
writ petition as well as the review petition before this Court, there
was a delay of 146 days. Noticing that, Order XXI Rule 90 CPC
permits the court to entertain an application only if it is filed
within a period of 60 days from the date of sale, restoration
application moved by the petitioner was found not entertainable
and it was dismissed by the execution court. Copy of that order
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is Ext.P5. Impeaching the correctness and propriety of Ext.P5
order, petitioner has filed this writ petition seeking the
aforementioned reliefs invoking the supervisory jurisdiction
vested with this Court under Article 227 of the Constitution of
India.
3. I heard the counsel for the petitioner.
4. It is submitted that during the pendency of the writ
petition, pursuant to the direction passed by this court and also
before the execution court, petitioner has deposited substantial
amounts towards satisfaction of the decree debt. According to
the counsel, already a sum of Rs.58,000/- had been deposited.
The principal sum covered by the decree was only Rs.66,900/-.
Whatever that be, in the present writ petition challenging an
order passed by the execution court declining the request of the
petitioner to restore an application moved under Order XXI Rule
90 CPC as time barred, this Court cannot show any indulgence as
the entertinability of a petition under Order XXI Rule 90 CPC is
strictly governed by the law of limitation applicable. But I make
it clear that if sale of the property is conducted without adjusting
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the deposit already made by the judgment debtor towards decree
debt, then it is open to him to seek withdrawal of the amount
from the execution court, after such enquiry, if any, warranted
with notice to the decree holder.
Subject to the above observation, this writ petition is
closed.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-