Kerala High Court
State Of Kerala vs Reghunath Kaimal on 30 April, 2011
Author: Thomas P. Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 19TH DAY OF MARCH 2013/28TH PHALGUNA 1934
OP(C).No. 4259 of 2012 (O)
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E.A.NO.246/11 IN E.A.32/10 IN E.P.11/06 IN LAR NO.40/02 OF
SUB COURT, THODUPUZHA
.....
PETITIONER(S):
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STATE OF KERALA,
REPRESENTED BY THE DISTRICT COLLECTOR,
IDUKKI.
RESPONDENT(S):
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REGHUNATH KAIMAL,
S/O. NEELAKANDA KAIMAL,
NILAYIKADU PEPPATHIYIL HOUSE,
MANAKADU.
BY SRI.K.K.CHANDRAN PILLAI,SENIOR ADVOCATE
BY ADVS. SRI.THOMAS JAMES MUNDACKAL
SRI.ARUN ANTONY
SRI.BOBBY THOMAS
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19-03-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Kss
OP(C) NO.4259/2012 O
APPENDIX
PETITIONER(S) EXHIBITS:
EXHIBIT-P1 - THE TRUE COPY OF THE SETTLEMENT DATED 30-4-2011.
EXHIBIT-P2 - THE TRUE COPY OF THE ORDER IN EA.NO.246/2011 IN EA.NO.32/2010
IN EP.NO.11/2006 IN LAR.NO.40/2002 OF THE SUB COURT, THODUPUZHA.
RESPONDENTS' EXHIBITS: N I L
/TRUE COPY/
P.A.TO JUDGE
Kss
THOMAS P. JOSEPH, J.
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Original Petition (civil) No. 4259 of 2013
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Dated this the 19th day of March, 2013
JUDGMENT
This original petition is filed by the State to set aside the court sale conducted on 10.02.2010 in E.P. No. 11 of 2006 in LAR No. 40 of 2002 of Sub Court, Thoudpuzha.
2. Respondent/decree holder filed E.P. No. 11 of 2006 for recovery of amount awarded in LAR No. 40 of 2002 and as the amount was not paid 2.372 cents belonging to the petitioner was sold in court auction on 10.02.2010 and purchased by the respondent.
3. Consequent to the sale on 10.02.2010, the dispute between petitioner and respondent was settled as seen from Ext.P1. As per settlement, petitioner has to pay Rs. 2,88,400/- to the respondent.
4. Pursuant to that settlement, petitioner filed E.A No. 246 of 2011 to set aside the sale. That application was dismissed as per Ext.P2, order for various grounds including limitation.
5. It is agreed by learned counsel for respondent that O.P.(C) No. 4259 of 2012 -: 2 :- the dispute was settled subsequent to the sale on 10.02.2010 and as seen from Ext.P1. In the light of the above, respondent has no objection in setting aside the sale.
6. Learned counsel for respondent submitted that application for cheque preferred by the respondent for withdrawal of Rs.2,88,400/- was dismissed. Learned Government Pleader submits that the State has no objection in the respondent withdrawing the said amount. The said submission is recorded.
7. Though the application to set aside the sale was preferred beyond the time prescribed this court, in exercise of its power under Article 226 of the Constitution can interfere on equitable grounds when it does not cause injustice to any of the parties, as held in Sree Jain Swetambar Terapanthi Vid(s) V. Phundan Singh and others (AIR 1999 Supreme Court 2322 - paragraph 18). Hence I am inclined to interfere in the matter notwithstanding that E.A No. 246 of 2011 is preferred beyond time and that challenging Ext.P2, order petitioner has not preferred any appeal.
Resultantly original petition is allowed as under:- O.P.(C) No. 4259 of 2012 -: 3 :-
1) Ext.P2, order dated 18.08.2011 on E.A. No. 246 of 2011 in E.P. No. 11 of 2006 in LAR No. 40 of 2002 of Sub Court, Thodupuzha is set aside.
2) E.A. No. 246 of 2011 is allowed.
3) The court auction sale held in E.P. No. 11 of 2006 on 10.02.2010 is set aside.
4) It is made clear that respondent can withdraw the sum of Rs.2,88,400/- (Rupees Two lakhs eighty eight thousand and four hundred only) deposited by the petitioner in the court below.
Sd/-
THOMAS P.JOSEPH,
JUDGE
smv //True copy//
P.A to Judge