IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ex.FA.No. 22 of 2003()
1. ANIL D.RAJ, S/O DEVARAJA NAICKEN,
... Petitioner
Vs
1. VIJAYA BANK, ALLEPPEY, REPRESENTED BY
... Respondent
2. SURYA NARAYANA COMPANY, HARDWARE
3. N.DEVARAJA NAICKEN, PARTNER, SURYA
4. N.GOPINATHA NAICK OF DO. DO.
5. N.RAVEENDRANATHA NAICK OF DO.
6. N.PURUSHOTHAMA NAICK, OF DO. DO.
7. C.MOHANACHANDRA NAICK OF DO.
8. C.BALACHANDRA NAICK OF DO.
9. C.PRADEEPKUMAR, LAKSHMINARAYANA MADOM
10. LAKSHMI BAI OF DO.
11. SAROJINI BAI OF DO.
12. SURESH OF DO. DO.
For Petitioner :SRI.V.G.ARUN
For Respondent :SRI.D.KRISHNA PRASAD
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :08/10/2009
O R D E R
M.N.KRISHNAN, J.
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Ex.F.A.NO.22 OF 2003
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Dated this the 8th day of October, 2009
J U D G M E N T
This is an appeal preferred against the order of the
Additional Sub Judge, Alappuzha in E.A.No.250/2002 in
E.P.No.127/1987 in O.S.No.31/1984. Vijaya Bank obtained a
decree for realisation of the amount and in execution of the
decree, attached the property and it is at that juncture the
present appellant moved an execution application
contending that he is entitled to a share in the property and
therefore, the sale cannot be proceeded with. At that time
it was brought to the notice of the court that a suit for
partition filed by the present appellant as O.S.No.52/1998
which ended in dismissal and therefore, by virtue of the said
decision, the claimant is not entitled to claim any right over
the property.
2. Now the learned counsel for the appellant on
ascertainment submits that an appeal was preferred
against such judgment as A.S.No.120/2000 wherein the
appellate court had granted a decree for partition
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Ex.F.A.NO.22 OF 2003
declaring the fractional right of the appellant over the
property. When it is so, then the matter requires
reconsideration by the court below. Mean while, it is also
submitted that one time settlement application has been
moved and parties are attempting to wipe of the liability. If
the liability is totally wiped of, then the question of
entertaining the execution application may not arise for the
reason that nothing remains to be decided. Therefore, in
the light of the latest developments by decreeing the suit
for partition, it has become necessary to set aside the order
passed by the trial court and therefore, it is set aside and
the matter is remitted back to the executing court for a
fresh consideration and all the parties are directed to
produce sufficient and necessary documents and evidence
in support of their respective contentions as well as the
fact that whether the decree amount has been wiped of.
The parties are directed to appear before the executing
court on 20.11.2009. Needless to say that all the questions
are left open for decision.
Disposed of accordingly.
M.N.KRISHNAN, JUDGE
cl
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Ex.F.A.NO.22 OF 2003
M.N.KRISHNAN, J.
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Ex.F.A.NO.22 OF 2003
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8th day of October, 2009
J U D G M E N T
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Ex.F.A.NO.22 OF 2003