IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 238 of 2009(C)
1. KHALID, S/O.ABOOBACKER, AGED 42 YEARS,
... Petitioner
Vs
1. VINAYAKUMAR, S/O.BALAN,AGED 54 YEARS,
... Respondent
For Petitioner :SRI.B.KRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :02/01/2009
O R D E R
K.P.BALACHANDRAN, J.
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W. P. C No.238 of 2009
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Dated this the 2nd day of January, 2009
JUDGMENT
The judgment debtor in E.P.57/05 on the
file of the Sub Court, Vadakara in execution
of the decree in O.S.481/04 on the file of the
Sub Court, Thrissur is the petitioner and the
decree holder is the respondent. The prayer in
this Writ Petition is to set aside Ext.P5
order directing the share of the petitioner
being sold and to adjourn the sale till Ext.P3
petition filed by him under Order 9 Rule 13
CPC to set aside the ex parte decree in the
suit is disposed of by the Sub Court,
Thrissur; to direct the Sub Judge, Thrissur to
serve notice on Ext.P3 petition to Advocate
Sri.Subin Raj who is appearing for the
respondent in the said suit on the execution
side before Sub Court, Vadakara and to direct
W. P. C No.238 of 2009 -2-
the Sub Judge, Thrissur to dispose of Ext.P3
petition as expeditiously as possible within a
time frame.
2. The suit O.S.481/04 was decreed ex
parte by Sub Court, Thrissur on 21/02/05.
Ext.P3 petition to set aside the ex parte
decree was filed by the petitioner on 18/02/08
after almost three years. Service of notice to
the respondent/plaintiff is still not effected
on Ext.P3. It is seen that the petitioner
moved E.A.37/08 under Order 21 Rule 69 of the
CPC for adjournment of sale on the ground that
petition to set aside ex parte decree is
pending. The said petition was allowed by the
execution court on payment of cost of
Rs.2,000/- as per Ext.P4 order dt.21/02/08 and
the sale was adjourned to 03/03/08. As late as
on 17/11/08 vide Ext.P5 order the execution
court observing that there is no payment and
W. P. C No.238 of 2009 -3-
no order setting aside ex parte decree is
produced ordered sale of 14/140 shares of the
petitioner/judgment debtor in the property
jointly owned by him with others and ordered
sale being conducted on 05/01/09 fixing upset
price at Rs.8 lakhs. The amount for which the
decree is being executed is almost Rs.9 lakhs
and the petitioner has not paid any amount at
all from out of the said amount. There is no
reason for this Court to interfere in the
above circumstances and to stay the execution
or to direct notice on Ext.P3 petition pending
before Sub Court, Thrissur being served on the
counsel for the decree holder appearing on the
execution side before Sub Court, Vadakara or
to direct the Sub Judge, Thrissur to dispose
of Ext.P3 petition when notice in the said
petition is not served on the respondent. This
Writ Petition is ill-conceived and is aimed
W. P. C No.238 of 2009 -4-
only to avoid the decree debt being paid and
is dismissed in limine.
K.P.BALACHANDRAN,
JUDGE
kns/-