Thressiamma Joseph vs State Bank Of Travancore on 1 February, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO.No. 85 of 2008()


1. THRESSIAMMA JOSEPH, W/O.LATE JOSEPH
                      ...  Petitioner

                        Vs



1. STATE BANK OF TRAVANCORE
                       ...       Respondent

2. V.J.FRANCIS, LISSA BHAVAN, POOMKAVU

3. THOMAS PARATHARA, PARATHARA VALIYA VEEDU

4. THANKAMMA THOMAS, PARATHARA VALIYA VEEDU

5. MAMACHAN, PARATHARA VALIYA VEEDU

6. JOHN BRITTO, PARATHARA VALIYA VEEDU

7. PETER, PARATHARA VALIYA VEEDU

8. LUSIAMMA JOSEPH, PARATHARA VALIYA VEEDU

9. SHINE, PARATHARA VALIYA VEEDU

                For Petitioner  :SRI.J.OM PRAKASH

                For Respondent  :SRI.SATHISH NINAN

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :01/02/2010

 O R D E R
                     M.N. KRISHNAN, J.
                 ...........................................
                      F.A.O.No.85 OF 2008
                 .............................................
          Dated this the 1st day of February, 2010.

                        J U D G M E N T

This is an appeal preferred against the order of the

Additional Subordinate Judge, Alappuzha in E.A.26/2005 in

E.P.No.172/1997 in O.S.No.129/1984. The application is

captioned as filed under Section 47 read with Order 21 Rule

90 of the CPC. By virtue of the decision of this Court in

Rajarethana Naikkan v. Parameswara Kurup (1997 (1)

KLT 777), it is laid down very clearly that in a case where

the judgment debtor invokes Section 47 of CPC, Order 21

Rule 90 cannot be applied. So, I ascertained from the

learned counsel for the appellant that whether the appeal is

prosecuted under Section 47 or Order 21 Rule 90. The

learned counsel would submit that the case is prosecuted

under Section 47 and not under order 21 Rule 90. If it is

not under Order 21 Rule 90, an appeal will not lie against

the order. There may be remedies available under Section 47

which the present appellant may be able to raise in an

appropriate form if permissible by law.

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F.A.O.No.85 OF 2008

2. So, I dispose of the FAO without going into the

merits of the case making it clear that since the appellant

wants to pursue her remedy only against an order under

Section 47, the appeal will not lie and the FAO is dismissed

making it clear that it will not debar the appellant from

approaching the appropriate forum in accordance with law.

The learned counsel wants some time to approach the

appropriate forum and therefore as a matter of grace, I

grant time till 20.2.2010 with a direction not to effect

delivery of the property till that date.

Disposed of accordingly.

M.N. KRISHNAN, JUDGE

cl

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