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BALAN S/O. MURUKANDI versus BABY, S/O. PAILY, ERUKKINCHIRA

High Court of Kerala

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BALAN S/O. MURUKANDI v. BABY, S/O. PAILY, ERUKKINCHIRA - CRP No. 1027 of 2002(A) [2007] RD-KL 14638 (1 August 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP No. 1027 of 2002(A)

1. BALAN S/O. MURUKANDI,
... Petitioner

Vs

1. BABY, S/O. PAILY, ERUKKINCHIRA,
... Respondent

2. V.K. SUBHASH, S/O. KRISHNANKUTTY,

For Petitioner :SRI.SAJAN VARGHEESE K.

For Respondent :SRI.P.HARIDAS

The Hon'ble MR. Justice PIUS C.KURIAKOSE

Dated :01/08/2007

O R D E R

PIUS C. KURIAKOSE,J.


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C.R.P.Nos.1027 & 1039 of 2002
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Dated: 1st August, 2007

ORDER

C.R.P.No.1039 of 2002 is instituted by the judgment-debtor against the order in E.A.No.619/2000 which was an application filed by the petitioner under Sections 47 and 151 of the C.P.C. seeking to set aside the order of sale on the ground that there has been material irregularities and fraud in the matter of conduct of sale. In fact the petitioner himself had filed E.A.No.332/2000 under Order XXI Rule 89 for setting aside sale after making requisite deposit. But E.A.No.332/2000 was not filed on time. For condoning the delay of one day caused in the matter of E.A.No.332/2000, the petitioner had filed E.A.No.571/2000. Under the impugned order the learned Subordinate Judge dismissed E.A.Nos.332, 571 and 619 of 2000 by passing a common order. C.R.P.No.1027/02 is instituted by the judgment-debtor against the order in E.A.No.571/2000.

2. Heard Mr.Sajan Varghese, learned counsel for the petitioner, Mr.O.Ramachandran Nambiar, counsel for the 2nd respondent and Smt.C.R.Saradamani, counsel for the 1st respondent.

3. On going through the impugned order what I notice is that the learned Subordinate Judge after finding that E.A.No.571/2000 C.R.P.Nos.1027 & 1039/02 - 2 - was not maintainable in law since the execution court had no power at all for condoning the delay caused in the matter of filing execution application, decides to dismiss that application and dismiss the other two applications also in view of the decision taken in E.A.No.571 of 2000. The maintainability of an application under Section 47 like the present one (E.A.No.619/2000) is not seen considered independently by the learned Subordinate Judge. According to me, notwithstanding the learned Subordinate Judge's decision on the delay petition, E.A.No.619/2000 could have been considered or the learned Subordinate Judge could have at least assigned reasons as to why the petitioner is not entitled to relief in E.A.No.619/2000. As for the decision to dismiss E.A.No.571/2000, the learned Subordinate Judge cannot be blamed. However since E.A.No.619/2000 was liable to be independently considered since the petitioner can have an arguable case that the issue arises within the scope of Section 47 C.P.C.

4. I set aside the order which is impugned in C.R.P.No.1039/2002 and allowing that C.R.P. directing the learned Subordinate Judge to take a fresh decision on E.A.No.619/2000 after hearing both sides. The parties will be permitted to adduce evidence C.R.P.Nos.1027 & 1039/02 - 3 - in support of their rival contentions in the E.A. As for order which is impugned in C.R.P.No.1027 of 2002 since the view of the learned Subordinate Judge cannot be found faulty, the same will stand approved and that C.R.P. will stand dismissed.

5. I also clarify that I have not stated anything finally regarding the merits/maintainability of E.A.No.619/2000.

srd PIUS C.KURIAKOSE, JUDGE


Copyright

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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