IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28194 of 2009(O)
1. SRI.K.J.JOHN SINGH, AGED 53 YEARS,
... Petitioner
2. SRI.K.J.BABY JOHN, AGED 50 YEARS,
Vs
1. M/S.INDUSTRIAL CREDIT & DEVELOPMNET
... Respondent
For Petitioner :SRI.ANIL S.RAJ
For Respondent :SRI.S.R.DAYANANDA PRABHU
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :23/11/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
- - - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C) No. 28194 of 2009
- - - - - - - - - - - - - - - - - - - - - - - - -
Dated: 23rd November, 2009
JUDGMENT
The Writ Petition is filed seeking mainly the following reliefs:
1. To issue a writ, order or direction in the nature of certiorari or such
other appropriate writ, order or direction quashing exhibits P8 to P10
as bad in law, unjust and unreasonable.
2. To issue a writ, order or direction in the nature of mandamus or
such other appropriate writ, order or direction directing the court
below to allow exhibits P2 to P4 as prayed for.
2. Petitioners are the judgment debtors in E.P.No.10 of 2003 on
the file of the District Court, Thrissur. The above execution petition
arises from the award passed in A.P.No.121 of 2000 in respect of
which execution proceedings commenced before the Civil Court,
Uduppi. The execution petition filed before that court was transmitted
to the District Court, Thrissur since the petitioners reside within the
jurisdiction of that court. Nine items of properties belonging to the
petitioners were attached to proceed with for satisfaction of the
decree debt. In the sale that followed after settlement of
proclamation, its publication, and other formalities, the decree holder
W.P.C.No.28194/09 – 2 –
obtaining the leave of the court purchased the properties put in
auction. When the decree holder later applied for delivery of the
property, petitioners moved three applications, P2, P3 and P4. P2 was
filed to set aside the order declaring them ex parte earlier in
E.A.No.13 of 2005, the application moved by the decree holder for
attachment of nine items of immovable properties which had been
later put to sale. P3 was filed to condone the delay of 1201 days in
filing the application to set aside the order passed in the execution
application referred to earlier. P4 petition was filed for appointment of
an advocate commission to determine and demarcate the property
sold in execution from the larger extent of the property which is
stated to be about 9 acres belonging to the judgment debtors. All
these three petitions, after consideration, were dismissed by the
learned District Judge vide P8, P9 and P10 orders. Propriety and
correctness of those orders are challenged in the writ petition by the
petitioners/judgment debtors invoking the supervisory jurisdiction
vested with this court under Article 227 of the Constitution of India.
3. I heard the counsel on both sides. Learned counsel for the
petitioners conceding that P2 and P3 applications would not lie under
the provisions quoted thereunder, canvassed an argument that such
W.P.C.No.28194/09 – 3 –
petitions could be construed as having been filed under Section 47 of
the Code of Civil Procedure. Judgment debtors have no challenge
against the sale or the execution proceedings so far taken, but, only a
grievance to the extent that the property sold has to be identified
from the larger extent of the property, which, according to them, has
about 9 acres, before delivery is given effect to. For such
identification, P5 application requesting for appointment of an
advocate commission, according to the counsel, deserve
consideration and merit. I do not find any merit in the submissions
made by the counsel. After confirmation of the sale and issue of the
sale certificate when the respondent/decree holder applied for
delivery of the property, the judgment debtors have filed these
applications, P2, P3 and P4, for the reliefs mentioned aforesaid. P2
and P3 applications are filed under Order 21 Rule 106 of the Code of
Civil Procedure, to set aside the ex parte order passed in the
application leading to the attachment of the properties before
proclamation and sale and for condoning the delay of nearly four
years in moving such an application. After sale, no such applications
can be entertained in respect of the orders passed leading over the
attachment prior to proclamation and publication for sale. Sale
W.P.C.No.28194/09 – 4 –
conducted in the proceedings, it appears, has never been challenged
by the petitioners on any ground whatsoever. P5 application for
appointment of an advocate commission to identify the property
sought to be proceeded on the basis of P2 and P3 applications
presented is unworthy of any merit. Dismissal of the above
applications by the learned District Judge is unassailable. There is no
merit in the writ petition, and it is dismissed.
srd S.S. SATHEESACHANDRAN, JUDGE