Appeal dismissed. Bench held the appellant should be permitted to withdraw the execution petition to avoid disruption of auction sale where the respondent had purchased the property, without prejudice to appellant's rights.
Authority permitted to withdraw EA 169/2011. Matrimonial Appeal disposed of.
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 K.M.JOSEPH
&
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
THURSDAY, THE 9TH DAY OF FEBRUARY 2012/20TH MAGHA 1933
MA.No. 57 of 2012
EA.169/2011 IN EP.25/2005 IN OS.192/1998 of FAMILY COURT, KOTTARAKKARA
APPELLANT(S): PETITIONER:
JAYACHANDRAN NAIR
S/O.RAGHAVAN PILLAI,SREERATHAVAM VEEDU, VENDAR MURI PUTHOOR VILLAGE.
BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SMT.NAVA VARGHESE
SRI.MANU SEBASTIAN
RESPONDENT(S): RESPONDENTS:
R1 BY ADV. SRI.ARUN
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 09-022012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ.
Mat.Appeal No.57 of 2012
Dated, this the 9th day of February, 2012
J U D G M E N T
K.M.Joseph, J.
Appellant is the petitioner in EA No.169/2011 in EP.No.25/2005 in OS.No.194/1998 on the file of the Family Court, Kottarakkara. It is an application purporting to be under Order 21 Rule 59 of Code of Civil Procedure for staying the auction sale for the purpose of executing the decree obtained by the first respondent against respondents 2 to 4. An order was obtained by the first respondent against the second respondent who is the husband of the first respondent. The second respondent, apparently had mortgaged 70 cents of property in favour of Kerala Financial Corporation (KFC for short) on 4.8.1995. There was default in the payment of mortgage money. KFC brought 70 cents of property to sale. In the meantime, 70 cents was attached as A- Schedule by the first respondent in the proceedings against respondents 2 to 4 in the year 1998. Besides 70 cents as A- Schedule B-Schedule was also attached. According to the learned counsel appearing for the first respondent before us it
MA 57/2012 -2-
belonged to the 3rd respondent who is none other than the mother of the second respondent.
MA 57/2012 -3-
meantime has purchased the property in the auction held on 7.12.2011 we feel that interest of justice would be met if we accede to the claim of the appellant permitting him to withdraw EA.169/2011 filed by him. Accordingly, we allow the appellant to withdraw EA 169/2011. We also make it clear that this will be without prejudice to any right the appellant has in law.
The Matrimonial Appeal is disposed of as above.
(K.M.JOSEPH) JUDGE.
(M.L.JOSEPH FRANCIS) JUDGE.
MS
3 issues framed by the court
Whether to permit withdrawal of an execution application seeking stay on the auction sale of mortgaged property
Whether the respondent has acquired the mortgaged property through auction bidding
Whether the interest of justice warrants allowing withdrawal of the appeal
2 provisions across 1 enactments
Jayachandran Nair
Boby @ Manju
N.P.Rajendran @ Venu
Parukutty
Narayanan
K.M.Joseph
M.L.Joseph Francis
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
