IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 776 of 2009()
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 :12/08/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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R.P.No.776 of 2009
in
W.P.(C).No.13913 of 2009 - O
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Dated this the 12th day of August, 2009
O R D E R
The review petition is filed by the petitioner in W.P.(C).
No.13913 of 2009 which was disposed by judgment dated
17.7.2009 negativing the challenges raised by the petitioner
against P5 order impugned in that petition passed by the
execution court. Petitioner had filed an application for setting
aside the sale under Order XXI Rule 90 CPC raising various
grounds. P2 is the copy of that application. That application was
dismissed for default. Against the order dismissing Ext.P2
application for default, petitioner preferred a writ petition before
this Court and it was disposed of by P4 order stating that it will
be open to the petitioner to seek restoration of P2 application.
Pursuant thereto the petitioner filed an application with a petition
to condone delay to restore P2 application which had been
dismissed earlier for default. After considering the merit of that
application the execution court dismissed that application vide P5
R.P.No.776 of 2009
2
order. Propriety and correctness of that order was challenged in
the above writ petition before this Court and after hearing the
counsel for the petitioner, the writ petition was closed negativing
the challenges raised against P5 order. Review petition has been
filed submitting that the order passed by the execution court
which was upheld by this Court is not correct for the reason that
in respect of a review petition filed under Section 5 of the
Limitation Act is applicable and execution court was not correct in
holding that the petition was barred by limitation. Learned
counsel for the petitioner relied on Kshemanidhi Kuries and
Loans (P) Ltd v. Ashokan (2008 (4) KLT 744) to contend that
in respect of a review petition relating to an order passed in
execution proceedings, Section 5 of the Limitation Act is
applicable.
2. I heard the counsel for the petitioner.
3. Having regard to the submissions made and taking
note of the facts and circumstances presented, I find there is no
merit in the review petition. P2 is the application filed by the
petitioner for setting aside a sale under Order XXI Rule 90 CPC
R.P.No.776 of 2009
3
and that was dismissed. Long thereafter, petitioner moved a
petition to restore that application with a petition to condone
delay. No purpose will be served even by allowing the review
petition since the application under Order XXI Rule 90 has to be
filed within the time limit fixed. I do not find any merit in the
petition and it is dismissed.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-