The applicant in E.A. No.606/2004 in E.A.440/2Q04 in E.P.No.58/2003 in O.S. No. 20/1998 is the appellant herein who challenges the order dated 16-8-2006 of the Principal Sub Court, Kochi by which the application filed by the appellant/petitioner under Order XXI R.101 read with Section 151 of C.P.C. was dismissed with costs holding that O.S. No. 134/2001 was a suit collusively filed by him against his brother who is the 2nd respondent in the above application and further found that he has no title or interest over the petition schedule property under the sale conducted in E.P.55/2002 in O.S.134/2001. It is the above order and finding are impugned in this appeal.

2. The averments and claim of the appellant/petitioner are as follows :

The appellant and 2nd respondent entered into a sale agreement on 10-8-1997 for the sale of 4 cents of property including house bearing No.11/855 A situating in survey No. 1077/1 of Puthuvypu village for a total consideration of Rs.3,60,000/- out of which Rs.15,000/- was paid as advance on the date of agreement itself. It is the further case of the appellant that as per the endorsement dated 9-12-1997, the period of the agreement was extended for a further period of 2 years for execution and registration of the documents. It is also averred that on 9-12-97, the appellant had paid the entire balance amount towards consideration to the 2nd respondent as the 2nd respondent was in absolute need of money to meet his urgent demand. The appellant says that the 2nd respondent failed to perform his part of the contract which constrained the appellant/petitioner to file O.S.134/2001 before the Sub Court, Kochi for specific performance and the said suit was decreed with a charge over the property. Since the said decree was not satisfied, the appellant/applicant has preferred E.P.55/2002 for execution of the decree, the decretal amount being calculated as Rs.4,03,472/-. Since no amount was paid, the petition schedule property therein, on which there was a charge as per the decree, sold in court auction on 25-2-2003 and in the said auction, the appellant/applicant participated and he bid the auction. The sale was confirmed on 26-6-2003 and the appellant had obtained sale certificate on 29-10-2003. Thereafter, as per the order in E.A.3/2004 in E.P.55/2002 in O.S.134/2001, the appellant/applicant has obtained delivery of the property and thus he is the absolute owner of the petition schedule property and he is in possession of the same. Thereafter, he was paying tax and he had telephone connection to the said house and he was paying electricity charges regularly and thus according to the appellant/applicant he was fully enjoying the property as he has got absolute ownership and possession without any interference from any corner and the appellant/applicant was not aware of any case relating to the petition schedule property till 5-11-2004.

3. It is the further case of the appellant that only on 6-11-2004 he came to know about the execution application No.440/2004 in E.P.No.58/2003 in O.S. 20/98 when Ist respondent filed application for delivery of the petition schedule property. Immediately thereafter, he approached the court below by filing E.A.606/2004 under Order XXI Rule 101 read with section 151 of CPC with a prayer to allow the claim petition contending that he is in absolute ownership and possession over the petition schedule property for the reasons stated in the affidavit accompanied thereto. He placed reliance on the sale certificate as per the order in E.P.55/2002 in O.S.134/2001 with respect to the whole property including House No.11/855 A and the aforesaid land property situated in Survey No.1077/01 of Puthuvypu village.

4. The 1st respondent filed a detailed counter statement controverting the claim and averments put forwarded by the appellant in his claim statement. According to the 1st respondent, the 2nd respondent is the brother of the appellant/applicant and the decree in O.S.134/2001 was