ALEX.K.IYPE v. M/S.MANICKANAMPARAMBIL TRUST

S.S.SATHEESACHANDRAN, J.-----------------------------------W.P.(C).No.26580 of 2009 - O---------------------------------Dated this the 12th day of October, 2009J U D G M E N TWrit petition is filed seeking the following relief:

To issue a writ of certiorari to set aside the ExhibitP1 order dated 18.8.2009 of the Additional Sub Court, North Paravur dismissing E.A.No.908/2006 inE.P.No.386/2001 in O.S.No.168/1998 and allow the same restoring E.A.No.14/2006 which was filed by the petitioners to set aside the order of sale dated 17.1.2006passed by the court below in the interest of justice.

Petitioners are the judgment debtors in E.P.No.386 of2001 in O.S.No.168 of 1998 on the file of the Additional SubCourt, North Paravur. Decree executed in the above execution petition was one for money. Towards realization of the decree debt immovable property of the judgment debtors comprising aresidential building was attached and later brought to sale. Thedecree holder knocked down the bid in auction and purchased the property in sale. Before confirmation of the sale the judgment debtors had moved an application under Order XXI Rule 90 of theCPC for setting aside the sale as vitiated by fraud and material W.P.(C).No.26580 of 2009 - O2irregularity. But that application was dismissed for default. Though the order of the court below dismissing the petition was challenged by way of a writ petition it was dismissed with the observation that the judgment debtors can move for restoring the application dismissed for default before the execution court. Pursuant thereto, the judgment debtors moved an application for restoration but that was dismissed vide Ext.P1 order by the execution court as barred by limitation. Propriety and correctness of that order is challenged in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.

I heard the counsel on both sides.

At the time of hearing learned counsel for the decree holder fairly submitted that if the judgment debtors are prepared to remit the sale price including the expenses incurred for stamp paper by the decree holder within a reasonable time fixed by this Court the decree holder has no objection for reconveying the property cancelling the sale certificate. Learned counsel appearing for the petitioners/judgment debtors submitted that W.P.(C).No.26580 of 2009 - O3the entire sum due to decree holder shall be paid for reconveyingthe property sold under the sale certificate which had already been issued in favour of the decree holder, within a period of three months. Pursuant to such submission, learned counsel for the decree holder has filed a statement showing that a sum ofRs.6,86,311/- is due from the judgment debtors, copy of which was also furnished to the learned counsel for the judgment debtors, and no objection to the statement was made. Afterhearing the counsel on both sides again and having regard to the submissions made I dispose of this writ petition with the following directions: The judgment debtors shall remit before the execution court the sum stated in the statement filed by the counsel for the decree holder, viz. Rs.6,86,311/- within three months from the date of this judgment. In case such remittance is made the execution court shall pass an order setting aside the sale and cancelling the sale certificate and intimate such cencellation to the sub registry as contemplated by the rules. If deposit is made by the judgment debtors within the time stipulated the impugned W.P.(C).No.26580 of 2009 - O4order passed by the court below shall stand set aside, and in the event of default in deposit as directed the court below shall proceed for delivery of the property to the decree holder. Subject to the above directions, the writ petition is disposed of. Hand over a copy of the judgment to the learned counsel on both sides on usual terms and send a copy to the court concerned. S.S.SATHEESACHANDRAN, JUDGE.bkn/-