IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 OP(C).No. 1927 of 2011(O) ------------------------- OS.172/1996 of ADDL.SUB COURT, PAYYANNUR .................... PETITIONER ------------------ M.B.MOHAMMED, EXECUTIVE DIRECTOR, M/S.EDATHALA POLYMERS PVT.LTD., VAZHAKKULAM, NORTH EDATHALA P.O., ALUVA-683 564. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT: ---------------------- M/S.SAKTHI TRADING COMPANY LTD., REPRESENTED BY MANAGING PARTNER, P.BALAKRISHNAN NAIR, S/O.PARAMESWARAN PILLAI, RESIDING AT KARIMBA, THALIPARAMBA-670 141. ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) FOR R SRI.GEORGE VARGHESE KIZHAKKAMBALAM THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1927 of 2011 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE COPYOF THE PETITION DTD 11.01.2010 FILED BY the PETITIONER BEFORE the ADDL.SUB COURT, NORTH PARAVUR FOR MODIFYING THE ORDER. EXHIBIT P2 : TRUE COPY OF the AUCTION NOTICE DTD 30.03.2011 EXHIBIT P3 : TRUE COPYOF THE EXECUTION PETITION DTD 13.03.2002 FILED BYTHE RESPONDENT BEFORE THE ADDL.SUB COURT, NORTH PARAVUR EXHIBIT P4 : TRUE COPYOF THE MEMO DTD 18.08.2009 ISSUED BY THE COUNSEL FOR THE RESPONDENT. EXHIBIT P5 : TRUE COPYOF THE MEMO DTD 17.09.2009 ISSUED BY THE COUNSEL FOR THE RESPONDENT. EXHIBIT P6 : TRUE COPYOF THE ORDER DTD 03.03.2004 PASSED BY THIS HON'BLE COURT IN W.P(C).NO.664 OF 2004 EXECUTION PETITION. EXHIBIT P7 : TRUE COPYOF THE ORDER DTD 22.12.2005 PASSED BY THIS HON'BLE COURT IN W.P(C).NO.664 OF 2004 EXHIBIT P8 : TRUE COPYOF THE RECEIPT DTD 09.01.2006 ISUED BY THE COUNSEL FOR THE RESPONDENT. EXHIBIT P9 : TRUE COPYOF THE CHELLAN DTD 01.04.2004 EXHIBIT P10 : TRUE COPYOF THE PETITION DATED 15.06.2011 FILED BY the PETITIONER BEFORE the ADDL.SUB COURT, NORTH PARAVUR PRAYING FOR ISSUANCE OF A STAY ORDER. EXHIBIT P11 : TRUE COPYOF THE PETITION DATED 15.06.2011 FILED BY the PETITIONER BEFORE THE ADDL.SUB COURT, NORTH PARAVUR PRAYING FOR DIRECTION. RESPONDET'S EXHIBITS: EXHIBIT R1(a) : TRUE COPYOF THE STATEMENT OF ACCOUNTS AS ON 01.03.2011 EXHIBIT R1(b): TRUE COPYOF THE ORDER OF LOWER COURT DTD 03.12.2009 IN E.P.NO.76 OF 2002 IN O.S.No.172 of 1996 EXHIBIT R1(c) : TRUE COPYOF THE COMMISSION REPORT DTD 26.06.2008 EXHIBIT R1(d): TRUE COPYOF THE SURVEY PLAN ATTACHED TO EXHIBIT R1(c). True Copy P.A to Judge THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1927 of 2011 ==================================== Dated this the 25th day of August, 2011 JUDGMENT The judgment debtor in E.P. No.76 of 2002 of the Court of learned Sub Judge, North Paravur where the decree in O.S. No.172 of 1996 of the Court of learned Sub Judge, Payyannur is being executed is the petitioner before me. The grievance of petitioner is that though petitioner had filed Exts.P10 and P11, applications to determine the actual amount, if any due to the respondent/decree holder and stay sale of property until then, executing court is proceeding to sell the property without disposing of the said applications. Learned counsel for petitioner contends that by now around Rupees Seven Lakhs has already been paid and according to petitioner, no further amount is due. Respondent has filed a statement showing the balance amount due to it. 2. This Court while admitting the original petition had granted a stay of sale on condition that petitioner deposited Rupees One Lakh in the executing court for payment to the O.P(C) No.1927 of 2011 -: 2 :- respondent within three weeks. Learned counsel for petitioner submits that the said condition could not be complied due to financial difficulties. It is submitted that counsel for petitioner has paid the said amount this day to the counsel for respondent. Learned counsel for respondent acknowledges receipt of a sum of Rupees One Lakh from learned counsel for petitioner. Respondent shall file memo before the executing court to record payment of the said amount. 3. Now, on the question as to whether any further amount is due to the respondent, that is a matter which the executing court has to decide. Hence I need not go into that controversy. I leave that matter to the executing court. 4. Until finalization of the amount if any due, the property shall not be sold. But, that shall be subject to the condition that petitioner files affidavit in the executing court before the time scheduled for sale (26.08.2011), without prejudice to his contention regarding the amount if any due, waiving fresh proclamation for sale. Resultantly this Original Petition is disposed of as follows: (i) Payment of Rupees One Lakh made by the learned counsel for petitioner to the learned counsel for respondent this day is O.P(C) No.1927 of 2011 -: 3 :- acknowledged by the learned counsel. Respondent is directed to file memo before the executing court within two weeks from this day to record such payment in the execution petition. (ii) It is directed that sale of property shall be held only after determining the actual amount if any due to the respondent. Executing court shall decide whether any further amount is due to the respondent within one month from this day. (iii) The sale scheduled to be held on 26.08.2011 shall be adjourned to a day after one month from 26.08.2011 on condition that without prejudice to the contention as to the amount if any due to the respondent, petitioner shall file affidavit in the executing court before the time scheduled for sale, waiving fresh proclamation for such sale. If such affidavit is not filed, executing court can proceed with the sale. (iv) In case petitioner makes any request for payment of the balance amount (in case found due) in installments the executing court shall consider that question after hearing counsel for respondent as well. THOMAS.P.JOSEPH, JUDGE Sbna/-