IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32033 of 2006(L)
1. DASAN PILLAI,
... Petitioner
Vs
1. CHONAPPALLIYIL ENTERPRISES,
... Respondent
2. C.G.SUDHEESH, S/O.C.G.BHASKARAN,
3. C.K.SASIDHARAN, S/O.C.G.KUMARAN,
4. K.S.SANALKUMAR, S/O.BALAKRISHNAN,
5. B.MOYHANAN, S/O.C.G.BHASKARAN,
6. M.G.PRASANNAN, S/O.C.G.GOPALAN MATHATHU,
7. C.G.GOPALAN, MATTATHUCHIRA,
8. AMBUJAKSHI BALAKRISHNAN,
9. SUSHAMA ASHOK RAJ,
10. SUJATHA, W/O.CHITHRABHANU,
11. P.K.CHITHRABHANU, GOVINDALAYAM,
12. N.BALAKRISHNAN, S/O.NANU,
13. THE FEDERAL BANK LTD.,
14. PRASANNAN, CHAKKRACHIRAYIL,
15. SULOCHANA, VIDYAVIHAR,
16. SUDHAMONY, W/O.ADV. P.S.ANILKUMAR,
17. LEELA GOPINATHAN,
18. K.R.MANOJ, KALATHIPARAMBIL,
For Petitioner :SRI.D.SOMASUNDARAM
For Respondent :SRI.A.ANTONY
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :03/02/2009
O R D E R
HARUN-UL-RASHID,J.
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W.P.(C).NO.32033 OF 2006
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DATED THIS THE 3RD DAY OF FEBRUARY, 2009
JUDGMENT
This writ petition is filed by the petitioner, who is a
purchaser of the property in a revenue sale. The prayer in this writ
petition is to set aside the order of the court below in
E.A.No.84/2004 in O.S.No.12/88 on the file of the Sub Court,
Cherthala.
2. O.S.No.12/88 is a suit filed by the 13th respondent as
plaintiff for a decree for money on the basis of the mortgage deed.
In execution of the decree, the property belonging to the judgment
debtor was put to auction sale, the 18th respondent herein is the
bidder in the court auction, the sale took place on 11/7/1994 and
the property was delivered to him.
3. The writ petitioner, who is the third party to the suit,
filed E.A.No.3762/02 stating that he had purchased the very same
property in the auction conducted under the Revenue Recovery
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Act. The case of the petitioner herein is that the Government
had first charge over the property and that the property was
proclaimed for sale by the Revenue Authorities under the
Revenue Recovery Act. On 23/8/1995 the petitioner purchased
the property for a sum of Rs.1,80,000/- in public auction
conducted by the Revenue Authorities, the sale was confirmed
and delivery effected on 22/12/1997. It is further alleged in the
writ petition that the 18th respondent, who is the auction
purchaser, dispossessed the petitioner on 21/10/2003, that the
petitioner is the title holder and therefore the said E.A. was filed
for re-delivery.
4.The said E.A. was posted for evidence on 24/2/2004.
Since there was no appearance for the petitioner, the E.A. was
dismissed for default. The petitioner further stated in the E.A.
that though there was a posting on 25/2/2004, he could not
appear on that day, since the said posting date was not known to
him. E.A.No.84/2004 is filed for restoration of
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W.P.(C).No.32033/2006
E.A.No.326/02 dismissed for default. The matter was seriously
opposed by the 18th respondent. The petitioner did not adduce
any supporting evidence either oral or documentary. The court
below examined the facts and circumstances leading to the
dismissal of the said E.A. and the further development leading to
the filing of the petition for restoration. The court below held that
the case was not properly prosecuted by the petitioner and no
enquiry was made at the appropriate time, which resulted in the
dismissal of the petition. The court below concluded that there is
laches on the part of the petitioner himself and therefore no
reasons are made out to restore the application to file.
5. The petitioner is not a party in the suit or in the
execution proceedings. In execution of the decree an item of
property was put to sale and the 18th respondent herein purchased
the property in court auction and subsequently sale certificate
was issued and delivery was effected. E.A. filed by a third party
for re-delivery is a petition, which cannot be entertained by an
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execution court. For the reasons stated above, I find no reason
to interfere with the order passed by the court below.
Writ Petition fails and accordingly dismissed without
prejudice to the right of the petitioner to approach before the
appropriate Forum for redressal of his grievances.
HARUN-UL-RASHID,
Judge.
kcv.