IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 407 of 2010(O)
1. V.K.KARTHIYAYANI AGED 47 YEARS,
... Petitioner
2. K.DASAN AGED 52 YEARS,S/O.CHANDU
Vs
1. THE SECRETARY,CANNANORE CO-OPERATIVE
... Respondent
For Petitioner :SRI.V.R.KESAVA KAIMAL
For Respondent :SRI.A.MOHAMED MUSTAQUE
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/12/2010
O R D E R
THOMAS P JOSEPH, J.
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O.P(C).No.407 of 2010
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Dated this 13th day of December, 2010
JUDGMENT
Respondent appears through counsel.
2. This petition is filed by petitioners challenging order
passed by learned Sub Judge, Thalassery on 19-11-2010 directing
delivery of property to the respondent in execution of the award
in A.R.C.No.1917/04-05. Property was sold in auction and
respondent filed Ext.P1, E.P.No.434 of 2006 for delivery of
property invoking Rule 95 of Order XXI of the Code of Civil
Procedure. That petition was resisted by petitioners on the
ground that sale was effected on 27-08-2008 and the same was
confirmed on 29-10-2008 but, Ext.P1, E.P.No.64 of 2010 was
filed after one year of confirmation of the sale and hence is
barred by limitation under Article 134 of the Limitation Act.
Grievance of petitioners is that executing court without
considering the objection passed Ext.P3, order for delivery of
property.
3. I have heard learned counsel for respondent also. It is
seen from Ext.P2 that petitioner has raised certain objections
regarding maintainability of E.P.No.64 of 2010. Learned counsel
O.P(C).No.407 of 2010
: 2 :
for petitioner has referred me to various decisions in support of
his contention. But, it is not necessary for me to go into that
question. Executing court has not decided the question. It is seen
from Ext.P3, order that executing court has not considered the
objection raised in Ext.P2. In that circumstances Ext.P3, order
cannot be sustained and is liable to be set aside.
Resultantly this petition is allowed and order dated
19-11-2010 directing delivery of property is set aside. Executing
court shall consider Ext.P2, objection and pass appropriate
orders after hearing both parties.
(THOMAS P JOSEPH, JUDGE)
Sbna/-