IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30756 of 2009(O)
1. ABDUL HAMEED KHAN, S/O.ALI KHAN KULEDAR,
... Petitioner
2. MUMTAJ, D/O.ALI KHAN KULEDAR,
3. FATHIMA, D/O.ALI KHAN KULEDAR,
4. GOWHAR, D/O.ALI KHAN KULEDAR,
5. RASHEED, S/O.ALI KHAN KULEDAR,
6. NOORJAHAN, D/O.ALI KHAN KULEDAR,
7. ASHARAF, S/O.ALI KHAN KULEDAR,
Vs
1. A.IBRAHIM, S/O.ALAVI, AGED 62 YEARS,
... Respondent
For Petitioner :SRI.RAJESH SIVARAMANKUTTY
For Respondent :SRI.VINOD KUMAR.C
The Hon'ble MR. Justice P.BHAVADASAN
Dated :04/03/2010
O R D E R
P. BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C). No. 30756 of 2009
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 4th day of March, 2010.
JUDGMENT
In this writ petition filed under Article 227 of
the Constitution of India, the petitioners call in question
Exts.P4 and P7 and also seek a direction to allow Ext.P2
cheque application filed by the petitioners for the
amount lying in deposit, which according to them
belongs to them.
2. The petitioners are the petitioners in
E.A.855 of 2008, which was the cheque application filed
by them for withdrawing Rs.4,55,677/-, the amount
which was lying in deposit as a result of the auction sale
in the partition suit. The property was sold for a total
amount of Rs.6,10,000/- and the decree requirements
were satisfied. According to the petitioners the balance
amount lying in deposit belongs to them.
3. In the meanwhile, respondent herein filed
E.A.970 of 2008 for setting aside the sale already
WPC. 30756/09. 2
confirmed under Order XXI Rules 90 and 91 of the Code
claiming that he and one Shajahan were in possession of
the property, which was brought in public auction. The copy
of the sale deed is produced as Ext.P3. They also filed
E.A.1026 of 2008 to condone the delay in filing the petition
to set aside the sale. Both the E.As were dismissed.
Thereafter Ext.P2 cheque application filed by the petitioners
was also dismissed taking the view that the respondent, who
sought setting aside of the sale obtained the property from
the petitioners having claims and therefore the petitioners
could not certainly be entitled to the entire balance amount.
Copy of the order is produced as Ext.P4.
4. The grievance of the petitioners is that the
property which was sold is entirely different from the
property to which claim was laid by the respondent. It is
contended that without ascertaining the said fact that the
cheque application was dismissed. Petitioners say that
there should have been a finding regarding the identity of
WPC. 30756/09. 3
the property, which was brought for sale and without doing
so, the dismissal of the cheque application was not proper.
5. The issue therefore is regarding the identity of
the property which was sold in court auction and to
ascertain whether it belongs to the petitioners or to the
respondent.
In the result, this petition is allowed, Ext. P4 order
is set aside, the court below is directed to consider the issue
regarding the identity of the property which was sold in
court auction and the one claimed by the respondent and
Shajahan and then consider Ext.P2 cheque application after
hearing both sides. Both sides will be free to adduce fresh
evidence.
P. BHAVADASAN,
JUDGE
sb.