IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 OP(C).No. 1001 of 2010(O) ------------------------- AGAINST THE ORDER IN EA NO.229/2010 IN EP.217/2009 IN OS.164/2008 of SUB COURT, PALA .................... PETITIONERS: -------------------------------- 1. JAINAMMA HEZHAKIEL, AGED 40 YEARS, W/O.K.J.HEZHAKEIL, KAYYALAKKAKATH HOUSE, ERUMAPRA KARA, ERUMAPRA P.O., MELUKAVU VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN-686 652. 2. K.J.HEZHAKEIL, AGED 49 YEARS, S/O.JOHN, KAYYALAKKAKATH HOUSE, ERUMAPRA KARA, ERUMAPRA P.O., MELUKAVU VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN-686 652. BY ADV. SRI.M.D.SASIKUMAR SRI.GEORGE MATHEW SRI.DIPU JAMES SMT.K.V.RAMYA RESPONDENT(S): --------------- STATE BANK OF INDIA, ERATTUPETTA BRANCH, ERATTEPETTA P.O., ERATTUPETTA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN-686 652. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06/12/2010, ALONG WOTH OP(C) NO.1002/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) Nos.1001 of 2010 & 1002 of 2010 -------------------------------------- Dated this the 6th day of December, 2010. JUDGMENT These petitions are in challenge of separate orders passed by the learned Sub Judge, Pala in E.A.No.229 of 2010 in E.P.No.217 of 2009 in O.S.No.164 of 2008 and E.A.No.226 of 2010 in E.P.No.218 of 2009 in O.S.No.163 of 2008 of the same court. Petitioner No.2 in O.P.(C) No.1001 of 2010 is the petitioner in O.P.(C) No.1002 of 2010. In both the cases, petitioners have suffered a decree for realisation of money by sale of mortgaged property belonging to them. When properties were brought up for sale by respondent, petitioners filed E.A.Nos.229 of 2010 and 226 of 2010, respectively (Ext.P1 in the cases) seeking one month' time so that they could arrange private sale of the mortgaged property and settle the claim of respondent. Those applications were dismissed by the executing court by separate orders which is under challenge. 2. I have heard learned counsel for petitioners and counsel for respondent. 3. The order under challenge suffers from no infirmity for two reasons – firstly, what was requested for was time so that petitioners wanted to arrange private sale of the mortgaged property and the time sought has expired and; secondly, in a decree for recovery of money by sale of mortgaged property OP(C) Nos.1001 & 1002/2010 2 no question of grant of permission for private sale arise in view of Rule 83(3) of Order XXI of the Code of Civil Procedure. I therefore do not find reason to interfere. 4. Petitioners requested that since the properties are being brought up for sale this day, they may be granted some time to discharge the liability. I have heard learned counsel for respondent also regarding that request of petitioners. Having regard to the circumstances stated by learned counsel I am inclined to grant three months time in each case for petitioners to discharge the liability subject to conditions. Resultantly these petitions are dismissed. But petitioners are granted three months time in each case to discharge liability under the decree and the sale of property scheduled for this day shall stand adjourned to a day after three months from this day subject to the following conditions: i. Petitioners in each case shall file affidavit in the executing court before the time scheduled for sale this day waiving fresh proclamation for such sale. ii. In each case, petitioners shall deposit Rs.75,000 (Rupees Seventyfive thousand only) within a month from this day and another Rs.75,000/- (Rupees Seventyfive thousand only) within two months from this day for payment to the respondent. iii. The entire amount shall be paid in each case before the expiry of the time granted hereby (unless further time is granted by the executing court after hearing both sides). OP(C) Nos.1001 & 1002/2010 3 iv. In case the affidavit aforesaid is not filed, there is default in payment of any installment above stated or, the entire amount is not paid within the time granted hereby it will be open to the respondent to proceed with sale as proclaimed. THOMAS P.JOSEPH, Judge. cks