High Court Kerala High Court

Balan vs Baby on 1 August, 2007

Kerala High Court
Balan vs Baby on 1 August, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP No. 1027 of 2002(A)


1. BALAN S/O. MURUKANDI,
                      ...  Petitioner

                        Vs



1. BABY, S/O. PAILY, ERUKKINCHIRA,
                       ...       Respondent

2. V.K. SUBHASH, S/O. KRISHNANKUTTY,

                For Petitioner  :SRI.SAJAN VARGHEESE K.

                For Respondent  :SRI.P.HARIDAS

The Hon'ble MR. Justice PIUS C.KURIAKOSE

 Dated :01/08/2007

 O R D E R
                         PIUS C. KURIAKOSE,J.
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                    C.R.P.Nos.1027 & 1039 of 2002
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                          Dated: 1st August, 2007

                                    ORDER

C.R.P.No.1039 of 2002 is instituted by the judgment-debtor

against the order in E.A.No.619/2000 which was an application filed

by the petitioner under Sections 47 and 151 of the C.P.C. seeking to

set aside the order of sale on the ground that there has been material

irregularities and fraud in the matter of conduct of sale. In fact the

petitioner himself had filed E.A.No.332/2000 under Order XXI Rule 89

for setting aside sale after making requisite deposit. But

E.A.No.332/2000 was not filed on time. For condoning the delay of

one day caused in the matter of E.A.No.332/2000, the petitioner had

filed E.A.No.571/2000. Under the impugned order the learned

Subordinate Judge dismissed E.A.Nos.332, 571 and 619 of 2000 by

passing a common order. C.R.P.No.1027/02 is instituted by the

judgment-debtor against the order in E.A.No.571/2000.

2. Heard Mr.Sajan Varghese, learned counsel for the petitioner,

Mr.O.Ramachandran Nambiar, counsel for the 2nd respondent and

Smt.C.R.Saradamani, counsel for the 1st respondent.

3. On going through the impugned order what I notice is that

the learned Subordinate Judge after finding that E.A.No.571/2000

C.R.P.Nos.1027 & 1039/02 – 2 –

was not maintainable in law since the execution court had no power

at all for condoning the delay caused in the matter of filing execution

application, decides to dismiss that application and dismiss the other

two applications also in view of the decision taken in E.A.No.571 of

2000. The maintainability of an application under Section 47 like the

present one (E.A.No.619/2000) is not seen considered independently

by the learned Subordinate Judge. According to me, notwithstanding

the learned Subordinate Judge’s decision on the delay petition,

E.A.No.619/2000 could have been considered or the learned

Subordinate Judge could have at least assigned reasons as to why the

petitioner is not entitled to relief in E.A.No.619/2000. As for the

decision to dismiss E.A.No.571/2000, the learned Subordinate Judge

cannot be blamed. However since E.A.No.619/2000 was liable to be

independently considered since the petitioner can have an arguable

case that the issue arises within the scope of Section 47 C.P.C.

4. I set aside the order which is impugned in

C.R.P.No.1039/2002 and allowing that C.R.P. directing the learned

Subordinate Judge to take a fresh decision on E.A.No.619/2000 after

hearing both sides. The parties will be permitted to adduce evidence

C.R.P.Nos.1027 & 1039/02 – 3 –

in support of their rival contentions in the E.A. As for order which is

impugned in C.R.P.No.1027 of 2002 since the view of the learned

Subordinate Judge cannot be found faulty, the same will stand

approved and that C.R.P. will stand dismissed.

5. I also clarify that I have not stated anything finally regarding

the merits/maintainability of E.A.No.619/2000.

srd                                  PIUS C.KURIAKOSE, JUDGE