IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 WP(C).No. 34383 of 2008(R) -------------------------- OS.NO.230/2002 OF SUB COURT, PALAKKAD .................... PETITIONER(S): --------------- R.KANAKARAJAN, S/O.RAGHAVAN, PEZHUMPALLAM VEEDU, KINASSERY, P.O.PALAKKAD. BY ADV. SRI.A.R.GANGADAS SRI.JAGADEESH LAKSHMAN RESPONDENT(S): --------------- R.CHANDRASEKHARAN, S/O.RAMAN, KAZHCHAPARAMBU, KANNADI AMSOM, PALAKKAD TALUK. ADV. SRI.VINOD KUMAR.C FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 34383/2008 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE E.P.NO.180/2006 IN O.S.NO.230/02 ON THE FILE OF THE SUB COURT, PALAKKAD. EXT.P2: COPY OF THE DRAFT NOTICE FILED UNDER ORDER 21 RULE 66 CPC EXT.P3: COPY OF THE COUNTER STATEMENT FILED IN E.P.NO.180/2006 DATED 16.9.2008. EXT.P4: COPY OF THE ORDER IN E.P.NO.180/2006 IN O.S.NO.230/2002 OF THE SUB COURT, PALAKKAD DATED 21.10.2008. EXT.P5: COPIES OF THE TREATMENT CARD AND MEDICAL BILLS DATED 27.11.2008. RESPONDENT'S EXHIBITS : EXT.R1(A) : E.P.NO.135/2006 IN OS NO.230/2002 ON THE FILE OF THE SUB COURT, PALAKKAD. //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. ---------------------------------- W.P.(C).No.34383 of 2008 ----------------------------------- Dated this the 29th day of June, 2011 JUDGMENT The petitioner is the judgment debtor in O.S.No.230 of 2002 on the file of the Sub Court, Palakkad. The decree holder filed E.P.No.180 of 2006 for realisation of the decree debt by sale of the property belonging to the judgment debtor. As per Exhibit P4 order dated 21st October 2008, the executing court ordered sale. Exhibit P4 order is under challenge in this Writ Petition. 2. One of the objections raised by the petitioner before the court below was that he is only a co-owner in respect of the property which is sought to be sold and therefore, the sale cannot be held. Another objection is that the extent of the property is not clearly shown. Even if the petitioner has only a fractional right in the property, W.P.(C) No.34383/2008 2 that does not mean that the property cannot be sold. The fractional right of the judgment debtor in the property can be sold in court auction for realisation of the decree debt. If the extent is not shown, that is a curable defect and the decree holder can be directed to state the extent in the sale proclamation. The objections raised by the petitioner, therefore, would not be a ground for setting aside an order for sale. 3. Lastly, the learned counsel for the petitioner submitted that the petitioner may be granted sufficient time to pay off the decree debt in instalments. Taking into account the facts and circumstances of the case and also taking note of the submission made by the decree holder, I am of the view that in the interests of justice, it is just and necessary to grant six months' time to the petitioner to pay off the decree debt. It is relevant to note here that the decree holder has filed E.P.No.135 of 2006 for realisation of W.P.(C) No.34383/2008 3 the same decree amount by arrest and detention of the petitioner and the same is pending. 4. In the facts and circumstances, the Writ Petition is disposed of as follows : (i) The petitioner shall pay the balance decree amount in six equal monthly instalments. The first instalment shall be paid on or before 5th August, 2011 and the balance instalments shall be paid on or before the fifth day of the succeeding months. If the fifth day of any of the succeeding months happens to be a holiday, the petitioner shall pay the instalment on the next working day. If the petitioner commits default in payment of any of the instalments, the whole of the balance would become due and the property would be liable for sale in execution of the decree. The proceedings W.P.(C) No.34383/2008 4 in E.P.No.180 of 2006 shall be kept in abeyance for a period of six months to facilitate payment of the decree amount in the manner indicated above. However, if the petitioner commits default, the execution proceedings can be proceeded with on such default. (ii) E.P.No.135 of 2006 filed by the decree holder against the petitioner shall also stand stayed for a period of six months to facilitate payment of the decree amount in the manner indicated above. However, if default is committed in payment of any of the instalments, the said Execution Petition can be proceeded with. K.T.SANKARAN JUDGE csl