IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 WP(C).No. 21441 of 2008(C) -------------------------- OS.227/1995 of ADDL.SUB COURT, ALAPPUZHA .................... PETITIONER: ------------ HARIKUMAR AGED 50 YEARS HARIBHAVANATHIL KARUMADI MURI, KARUMADI VILLAGE AMBALAPUZHA. BY ADV. SMT.C.G.BINDU SMT.C.G.AJITHA SMT.D.SARITHA RESPONDENT:- ---------------- P.K.MADHAVAN POTTI PUNNAKOCHUMADATHIL KARUMADI MURI, KARUMADI VILLAGE AMBALAPUZHA TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.21441 OF 2008 =========================== Dated this the 16th day of July, 2008 JUDGMENT Petitioner is the judgment debtor and respondent the decree holder. In execution of the decree for realisation of money from petitioner E.P.15/2005 was filed before Sub Court, Alappuzha. That execution petition was for sale of the property. When the property was directed to be sold, petitioner filed E.A.105/2008, an application under Rule 83 of Order XX1 of Code of Civil Procedure contending that the entire decree debt could be paid if petitioner is permitted to sell a portion of the property sought to be sold and therefore petitioner may be permitted to have a private sale. Under Ext.P5 order it was dismissed. This petition is filed under Article 227 of Constitution of India challenging Ext.P5 order. 2. Learned counsel appearing for petitioner was heard. W.P.(C)21441/08 2 3. In view of the order to be passed in this petition, I do not find it necessary to issue notice to respondent. 4. Rule 83 of Order XX1 of Code of Civil Procedure enables the judgment debtor to apply to the court in an execution petition to postpone the sale of the property comprised in the order for sale, on such terms and for such period to enable the judgment debtor to raise the amount. If the court is satisfied that there is reason to believe that the amount of the decree may be raised by the judgment debtor either by mortgage lease or private sale, court is competent to grant the permission sought for. That exactly was the prayer of the petitioner in filing E.A.105/2008. Learned Sub Judge dismissed the application on the ground that it is an attempt to protract the execution proceedings, as the decree was passed on 28.10.1997 and petitioner did not pay any portion of the amount. 5. Learned counsel appearing for petitioner submitted that if a portion of the property sought to be sold is allowed to be sold by private sale, W.P.(C)21441/08 3 petitioner can discharge the entire decree debt and in such circumstance, to avoid the sale of the entire property, Sub Judge should have granted the permission sought for. 6. Ext.P5 order shows that Sub Judge did not consider the application as provided under Rule 83. The delay in payment of the decree debt is not a ground to reject the application under Rule 83. What is to be satisfied by the court is that if a portion of the property is allowed to be alienated, mortgaged or leased, whether judgment debtor could raise the necessary funds to discharge the entire decree debt. As the Sub Judge did not consider the same, Ext.P5 order is quashed. Sub Judge is directed to pass appropriate order in Ext.P5 petition in the light of the provisions of Rule 83 of Order XX1, after hearing the judgment debtor as well as the decree holder, Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006