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SALIM, S/O.NALAKATH KOLADY ABDUL RAHIMAN versus KORUS KURIES & LOANS (P) LTD.

High Court of Kerala

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SALIM, S/O.NALAKATH KOLADY ABDUL RAHIMAN v. KORUS KURIES & LOANS (P) LTD. - WP(C) No. 16183 of 2007(B) [2007] RD-KL 13705 (20 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 16183 of 2007(B)

1. SALIM, S/O.NALAKATH KOLADY ABDUL RAHIMAN
... Petitioner

Vs

1. KORUS KURIES & LOANS (P) LTD.,
... Respondent

For Petitioner :SRI.C.S.ULLAS

For Respondent :SRI.N.P.SAMUEL

The Hon'ble MR. Justice M.N.KRISHNAN

Dated :20/07/2007

O R D E R

M.N.KRISHNAN, J.

WP(C)No. 16183 OF 2007 B

Dated this the 20th July, 2007.



JUDGMENT

This writ petition is filed seeking to set aside the order of the learned II Additional Sub Judge, Thrissur in E.A.1249/05. The said application is one to set aside the sale under Order XXI Rule 90 of the Civil Procedure Code on the ground of material irregularity and fraud in publication and conduct of the sale. There is some force in the contention of the learned counsel for the respondent that a remedy is provided under Order XLIII CPC and therefore, strictly the writ petition may not lie. But since the matter is disposed of on the question of limitation and it appears to be apparently an incorrect order, I do not want the parties again to be driven to the forum of appeal and loose time. So, in order to correct a mistake committed, I am exercising the supervisory jurisdiction vested in me under Art.227 of the Constitution of India and proceed to dispose of the case as follows.

2. The learned Sub Judge dismissed the application on the ground of limitation. Under Order XXI Rule 90 CPC an application for setting aside the sale in execution of a decree has to be filed within a period of 60 days from the date of sale. The sale was conducted on 18.5.2005. The WPC 16183/07 2 application was filed on 18.7.2005. As per the provisions of law the day of passing the order has to be excluded and if 60 days are calculated there will be 13 days in May, 30 days in June and 17 days in July to make it 60 days. Learned counsel for the writ petitioner has brought to my notice that 17.7.2005 was a Sunday. Under Section 4 of the Limitation Act where the prescribed period of any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the date when the court re-opens. Here 17.7.2005 was admittedly a Sunday when the court was closed. So Section 4 empowers the court to receive a petition on 18.7.2005 and therefore an application filed on 18.7.2005 is within the statutory period of 60 days. Therefore the petition deserves consideration on merits. I have not dealt with the case on merits and it is for the court below to find out whether there are sufficient grounds as alleged in the petition for setting aside the sale. Therefore, the order under challenge is set aside and the matter is remitted back to the executing court for fresh consideration of the E.A in accordance with law, after affording both sides sufficient opportunity to put forward their respective contentions and adduce evidence, both documentary and oral. Parties are directed to appear WPC 16183/07 3 before the court below on 21.8.2007. Writ petition is disposed of accordingly. M.N.KRISHNAN Judge jj


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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