Writ petition filed by decree holders seeking rateable distribution of sale proceeds. Court directed executing court to dispose of joint Rule 90 petition to set aside sale and decide rateable distribution before confirming sale under E.P. No. 42/03.
Court directed executing court to dispose of Rule 90 petition and decide rateable distribution before confirming sale.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR
TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930
WP(C).No. 2658 of 2008(N)
------------------------EP.42/05 IN OS.12/2001 of SUB COURT, TIRUR
PETITIONER:
BY ADV. SRI.K.RAMACHANDRAN
SMT.R.MEERA
RESPONDENTS:
WP(C).No.2658/08
2
PONNANI, MALAPPURAM.
R1 BY ADV. SRI.K.P.BALASUBRAMANYAN
SRI.NIRMAL. S
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX IN WPC.2658/08
PETITIONER'S EXHIBITS :
/TRUE COPY/
M.SASIDHARAN NAMBIAR, J.
W.P.(C) No.2658 of 2008
Dated this the 8th July, 2008.
J U D G M E N T
Petitioners are the decree holders in O.S.Nos.215 of 2000 & O.S.No.30 of 2003, on the file of Sub Court, Tirur, O.S.No.392 of 2000, O.S.No.119 of 2001, O.S.No.49 of 2001 and O.S.No.243 of 2000, on the file of Munsiff Magistrate Court, Ponnani. First respondent is the decree holder in O.S.No.12 of 2001, on the file of Sub Court, Tirur. The judgment debtor in all these cases is one and the same. First respondent got properties of the judgment debtor attached and sold in execution of the decree, in E.P.No.42 of 2003 in O.S.No.12 of 2001. Petitioners instituted execution petitions in the respective courts and got the decrees transferred to Sub Court, Tirur, and subsequently filed Exts.P1 to P5(a) execution petitions. In those execution petitions, they specifically contended that the property was attached in the execution petition filed by the first respondent, and, therefore, no order of fresh attachment is necessary and the sale proceeds are to be rateably distributed and petitions are also filed under Section 73 of Code of Civil Procedure. In E.P.No.42 of 2003,
W.P.(C) No.2658 of 2008
2
the attached property of the judgment debtor was sold on 17.2.2007, and on his application, as provided under Rule 72 (2) of Order XXI of Code of Civil Procedure, he was permitted to bid and set off. This petition is filed by the other decree holders for a direction to Sub Court, Tirur, to dispose of their Execution Petitions, as well as the petition filed under Rule 90 of Order XXI of Code of Civil Procedure.
and learned counsel appearing for first respondent were heard.
W.P.(C) No.2658 of 2008
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aside the sale is maintainable by any person entitled to share in rateable distribution of assets and when petitioners have already filed a petition jointly under Rule 90 of Order XXI of Code of Civil Procedure, to set aside the sale, they are entitled to get the sale set aside, in which case, property could be sold for the maximum price and the sale proceeds would be distributed among all the decree holders, and, therefore, Executing Court is to be directed to dispose of the petition filed under Rule 90 of Order XXI of Code of Civil Procedure by all the petitioners and also their execution petitions before confirmation of sale in E.P.No.42 of 2003.
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amount due to the first respondent, decree holder, in whose execution petition the property was sold is to be discharged, and if that is allowed, there is no necessity to direct the executing court to dispose the matter, as there will be nothing left thereafter.
In such circumstances, writ petition is disposed of directing executing court (Sub Court, Tirur) to dispose of the petition jointly filed by the petitioners under Rule 90 of Order XXI of Code of Civil Procedure to set aside the sale, as expeditiously as possible, and
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also decide the question whether petitioners are entitled to rateable distribution of the assets as sought for in their respective execution petitions. The executing court is also directed not to confirm the sale, before disposal of the petition filed under Rule 90 of Order XXI of Code of Civil Procedure.
M.SASIDHARAN NAMBIAR, JUDGE
nj.
2 issues framed by the court
Whether petitioners entitled to rateable distribution of sale proceeds attached in another execution petition.
Whether executing court liable to dispose of Rule 90 petition setting aside sale before confirming sale.
3 provisions across 1 enactments
THANKAMMA JOSEPH AND OTHERS
SIDHI
M. SASIDHARAN NAMBIAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
