Abraham Jacob vs P.P. Thomas

P.N. Ravindran, J.—The petitioner is the judgment-debtor in O.S. No. 177 of 1997 on the file of the Court of the Principal Subordinate Judge of Kottayam. The respondent is the decree-holder. In execution of the decree in O.S. No. 177 of 1997 an item of property belonging to the petitioner herein was brought to sale, sold and purchased by the decree-holder, on 22.2.2010. The sale was confirmed on 13.1.2010 and a sale certificate was issued on 4.2.2011. The decree-holder thereafter filed an application for delivery of the property sold in auction. The property was accordingly delivered over to him on 25.7.2011 and the execution petition was closed. Shortly thereafter, the decree-holder filed E.A. No. 1111 of 2011 to amend the sale certificate by correcting the survey number as R.S. No. 311/7 in the place of R.S. No. 211/7/1 as shown in the sale certificate. He also prayed that the northern boundary of the property may be corrected by describing the northern boundary as a footpath instead of the property of Jose Jacob. On that application notice was served on the petitioner. He did not however enter appearance and oppose the application. Consequently, the execution court allowed E.A. No. 1111 of 2011 by Ext. P3 order dated 18.1.2012. Aggrieved thereby the petitioner filed O.P.(C) No. 3419 of 2012 in this Court. By Ext. P4 judgment delivered on 16.10.2012 a learned single Judge of this Court disposed of the said original petition with the observation that the remedy of the petitioner is to have recourse to Order XXI Rule 106 of the Code of Civil Procedure. In order to enable the petitioner to move the execution court under Order XXI Rule 106 of the Code of Civil Procedure, this Court also kept in abeyance further proceedings for a period two weeks.

The petitioner thereafter filed E.A. No. 809 of 2012 under Order XXI Rule 106 of the CPC to set aside Ext. P3 order dated 18.1.2012 passed by the Court of the Principal Subordinate Judge of Kottayam on E.A. No. 1111 of 2011 in O.S. No. 177 of 1997 accompanied by E.A. No. 810 of 2012 to condone the delay of 245 days in filing E.A. No. 809 of 2012. The grievance voiced in this original petition is that notwithstanding several postings the aforesaid applications have not been heard and disposed of. In this original petition filed under Article 227 of the Constitution of India the petitioner prays for an order directing the Court of the Principal Subordinate Judge of Kottayam to hear and dispose of E.A. Nos. 809 and 810 of 2012 in E.A. No. 1111 of 2011 in E.P. No. 58 of 2005 in O.S. No. 177 of 1997 within a time limit to be fixed by this Court.

When this original petition came up for hearing on 2.7.2013 this Court directed the Registry to call for a report from the Principal Sub Judge, Kottayam as to whether applications were filed by the judgment debtor pursuant to Ext. P4 judgment of this Court dated 16.10.2012 in O.P.(C) No. 3419 of 2012 and whether those applications have been disposed of. This Court also directed the Registry to ascertain whether there is any legal impediment for disposing of those applications. The Principal Sub Judge, Kottayam, has sent a report dated 4.7.2013 wherein it is stated that E.A. Nos. 809 and 810 of 2012 and E.A. No. 179 of 2013 filed by the judgment debtor came up for hearing on 1.6.2013, that both parties sought time for hearing and hence they were adjourned to 15.7.2013. The Presiding Officer has also reported that there is no legal impediment in disposing of the said applications.

I accordingly dispose of the original petition with a direction to the Court of the Principal Subordinate Judge of Kottayam, to hear and dispose of E.A. Nos. 809 and 810 of 2012 in E.A. No. 1111 of 2011 in O.S. No. 177 of 1997 as also E.A. No. 179 of 2013, expeditiously and in any event within two weeks from 15.7.2013.

Registry to communicate a copy of this judgment to the Court of the Principal Subordinate Judge of Kottayam.