Disposed

Sudhakaran v. State Bank of Travancore

Kerala HC28 Sept 2016OP(C)/1427/2016

Case brief

AI extract

What is this about?

The High Court dismissed the petition under Article 227 superseding the impugned delivery order. The court held that since an appeal challenging the sale is pending and delivery had already been effected, the relief sought was infructuous. Instead, orders directing the lower court to expedite the pending appeal by one month. No ruling on the merits of the sale.

What did the court decide?

Directing the District Court, Alappuzha to expedite the disposal of CMA No.53/2015 within one month. The petition is disposed of.

Sudhakaran Vs State Bank of Travancore — Execution and Attachment | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

¶4

WEDNESDAY, THE 28TH DAY OF SEPTEMBER 2016/6TH ASWINA, 1938

¶5

OP(C).No. 1427 of 2016 (O)

¶6

E.A.NO.1/2016 IN E.P.NO.102/2010 IN O.S.NO.12/2009 OF SUB COURT, ALAPPUZHA

¶7

PETITIONER(S)/JUDGMENT DEBTORS 2 & 3 :

¶8

1. SUDHAKARAN, S/O.SREEDHARAN, AGED 55 YEARS, T.K.LATHA BHAVAN, ATTUVATHALA, NEDUMUDI P.O, ALAPPUZHA.

¶9

2. PRASANTHA, W/O.SUDHAKARAN, T.K.LATHA BHAVAN, ATTUVATHALA, NEDUMUDI P.O, ALAPPUZHA.

¶10

BY ADVS.SMT.C.G.BINDU

¶11

SMT.C.G.AJITHA

¶12

RESPONDENT(S)/JUDGMENT DEBTOR NO.1, DECREE HOLDER & JUDGMENT DEBTORS 4 & 5:

¶13

1. STATE BANK OF TRAVANCORE, RAMANKARY BRANCH, PIN-688 001, REPRESENTED BY ITS BRANCH MANAGER.

¶14

2. MATHEW JOHN,

¶15

S/O.JOHN, AGED 56 YEARS, PALATHARA VEEDU, THEKKEKARA P.O, MANKOMBU-690 107.

¶16

3. MINIMOL JOSEPH, W/O.P.V.JOSEPH, AGED ABOUT 41 YEARS, OTTIYARAYIL, THALAVADI P.O, ALAPPUZHA-689 572.

¶17

2/-

¶18

-2-

¶19

OP(C).NO.1427/2016

¶20

4. G.MOHANAN, S/O.GOPINATHAN, AGED ABOUT 46 YEARS, KATTIL VEEDU, PRAKULAM, KOLLAM, NELLIPUZHA HOUSE, TRIKARUVA PANCHAYATH (KOLLAM)-691 001.

¶21

R1 BY ADV. SRI.K.NARAYANAN, SC, STATE BANK OF TRAVANCORE R2 BY ADV. SRI.B.PREMNATH

¶22

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶23

sts

¶24

OP(C).No. 1427 of 2016 (O)

¶25

APPENDIX

¶26

PETITIONER(S)' EXHIBITS

¶27

P1 : TRUE COPY OF THE EA NO.300/2014 IN EP NO.102/2010

¶28

IN OS NO.12/2009 ON THE FILE OF SUB JUDGE, ALAPPUZHA DATED 30.8.2014

¶29

P2 : TRUE COPY OF THE EA NO.274/2015 IN EP NO.102/2010 IN OS NO.12/2009 ON THE FILE OF SUB JUDGE, ALAPPUZHA DATED 10-9-2015.

¶30

P3 : TRUE COPY OF THE CMA NO.53/2015 BEFORE THE DISTRICT COURT, ALAPPUZHA DATED 10-12-2015.

¶31

P4 : TRUE COPY OF THE IA NO.1781/2015 IN CMA NO.53/2015

¶32

DATED 10-12-2015.

¶33

P5 : TRUE COPY OF THE ORDER DATED 25-5-2016 IN EA NO.1/2016 IN EP NO.102/2010 IN OS NO.12/2009 ON THE FILE OF SUB JUDGE, ALAPPUZHA.

¶34

RESPONDENT(S)' EXHIBITS:

NIL

/TRUE COPY/

P.S.TO JUDGE

sts

K. RAMAKRISHNAN, J.

¶40

.................................................. OP.(C).No.1427 of 2016

¶41

....................................................... Dated this the 28^th day of September, 2016.

¶42

JUDGMENT

¶43

This is a petition filed by the petitioner challenging

¶44

the order of delivery passed by the court below by Ext.P5 order under Article 227 of the Constitution of India.

¶45

It is alleged in the petition that petitioners are

¶46

the husband and wife and they are the judgment debtors in O.S No.102 of 2009 of Sub Court, Alappuzha filed by the first respondent bank. The suit was filed by the first respondent for recovery of the amount and the suit was decreed and in order to execute the decree the above execution petition has been filed. The first respondent bank sought execution of the decree by sale of the property after fixing the upset price and that was sold in auction and second respondent has purchased the property. The petitioners filed E.A No.300 of 2014 to set aside the same under Order XXI Rule 90 of the Code of Civil Procedure vide Ext.P1 and since 4^th respondent did not appear, substitute service was ordered against him by affixure and publication. But, according to the petitioner, due to over sight, only steps for affixture alone was taken and publication was not produced. But, instead draft publication was produced

¶47

OP.(C).No.1427 of 2016

¶48

¶49

on the date on which the application was posted sought time for production of publication. But it was refused and Ext.P1 petition was dismissed for default. Thereafter, petitioner filed Ext.P2 petition as E.A No.274 of 2015 for restoration of Ext.P1 and that was dismissed by the court below against which petitioner filed C.M.A No.52 of 2015 before District Court, Alappuzha along with delay condonation petition and also filed I.A No.1781 of 2015 for

¶50

staying the execution proceedings. After confirmation of the sale, second respondent filed E.A No.1 of 2016 for delivery of the property and it was posted to 25.05.2016 for objection to hearing and copy of the petition was not served upon the petitioners so they could not file objection. So they could not file objection. Ignoring this aspect, the court below passed Ext.P5 order ordering delivery. That is being challenged by the petitioners by filing this petition.

¶51

Heard Smt. C.G. Ajitha, learned counsel appearing for the petitioners and Sri. K. Narayanan, learned counsel appearing for the first respondent and Sri.B. Premnath, learned counsel appearing for the 2^nd respondent. The third respondent was served and the 4^th respondent did not appear as it was returned with the endorsement 'not known'. Notice to the 4^th respondent is dispensed with.

¶52

¶53

OP.(C).No.1427 of 2016

¶54

I have called for a report from the concerned court regarding the present stage and accordingly a report has been received which reads as follows:

¶55

“I report that the property was delivered at 11 a.m on 13.6.2016. A copy of the delivery kychit is submitted herewith for kind perusal. I submit that the order of the Hon'ble High Court dated 13.6.2016 was produced before this court on 14.6.2016 after the delivery of the property. A copy of the memo filed by the learned counsel for the petitioners before the High Court is also submitted herewith. I may also report that on 13.6.2016 the petitioners before the Hon'ble High Court had filed EA.No.139/16 to stop delivery on the ground that CMA.53/15 is pending before the District Court, Alappuzha and same was placed before me after 4.30 p.m on the same day and the same was also posted to 15.6.2016 and now stands posted to 15.7.2016.

¶56

I submit the EA.1/2016and EA.139/16 now stand posted to 15.7.16 awaiting further orders from the Hon'ble High Court. EP.No.102/10 was closed on 21.10.2015”.

¶57

Learned counsel appearing for the petitioners submitted that the sale conducted is not proper and though an application has been filed intimating the court regrading the pendeny of the appeal filed, no orders have been passed in that application by the court below and without application of mind delivery has been ordered and also in a way admitted that the delivery has been effected as well.

¶58

¶59

OP.(C).No.1427 of 2016

¶60

Learned counsel for respondents 1 and 2 also submitted that delivery has been effected and the prayer in the petition has become infructuous.

¶61

It is an admitted fact that the petitioners suffered a decree in the suit filed by the first respondent and it was put in execution by sale of the property and it was sold in auction and the second respondent has obtained the same as successful bidder. Though the petitioners filed an application to set aside the sale under Order 21 Rule 90, it was admitted by the petitioners themselves that it was dismissed for not taking steps as directed and they filed an application to restore the same and that was also dismissed which has been challenged by the petitioners by filing CMA.No.53/2015 along with delay condonation petition before the District Court, Alappuzha. Since the petitioners have already filed an appeal against the order dismissing an application to restore the application to set aside the sale and that is in consideration of the appellate court, this court is not expected to go into the question as to whether the sale conducted is proper or not in the application filed by the petitioners under Article 227 of the Constitution of India, especially when appeal is pending in this regard. Since delivery has already been effected, the prayer in the petition has become infructuous. This court feels that the petition can be disposed of directing the District Court, Alappuzha to expedite the disposal

¶62

OP.(C).No.1427 of 2016 5

¶63

of CMA.No.53/2015 pending before that court.

¶64

So the petition is disposed of directing the District Court, Alappuzha to expedite the disposal of CMA.No.53/2015 pending before that court as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment.

¶65

With the above directions and observations, this petition is disposed of.

¶66

Sd/-

¶67

K. RAMAKRISHNAN, JUDGE.

¶68

vdv/cl

¶69

OP.(C).No.1427 of 2016 6

Sudhakaran v. State Bank of Travancore

Case brief

What is this about?

What did the court decide?

Sudhakaran v. State Bank of Travancore

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Jayesh Thampan Vs Rajesh Kumar

Church of God (Full Gospel) in India Vs Thomas T.George

The Cannanore District Co-Operative Bank Employees Union. Vs M.K. Syamlal

Mayilvahanam Funds Vs P.Sheena

Chess Association Vs M.B.Muareedharan

Kuttykrishnan Vs Ramachandran