IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 WP(C).No. 5773 of 2009(O) OS.441/1996 OF THE PRINCIPAL SUB COURT,IRINJALAKUDA PETITIONER: --------------- T.S.NARAYANANKUTTY, S/O.THARAYIL SANKARANKUTTY, KAIPAMANGALAM VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.M.C.GOPI ADV. SRI.BABU KARUKAPADATH ADV. SMT.VAHEEDA BABU ADV. SRI.JAGAN ABRAHAM M.GEORGE ADV.SRI.K.A.NOUSHAD ADV. SRI.P.G.PRAMOD RESPONDENT: --------------- IRINJALAKUDA KURIES AND FINANCE (P)LTD, MANAVALASSERY VILLAGE, IRINJALAKUDA, THRISSUR DISTRICT. BY ADV. SRI.K.S.BHARATHAN SRI.B.JAYASANKAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 5773 OF 2009 O ------------------------------------------------------ Dated this the 20th March, 2009 JUDGMENT The judgment debtor in E.P.No.118 of 2001 in O.S.No.441 of 1996, on the file of the Court of the Principal Sub Judge, Irinjalakuda, is the petitioner. He challenges the order passed by the court below in E.A.No.1695 of 2007 in E.A.No.2169 of 2006 in the Execution Petition. The Execution Petition was filed by the respondent for realisation of the decree amount by sale of the immovable property belonging to the petitioner, which was mortgaged in favour of the decree holder. In execution of the decree, the immovable property belonging to the petitioner, which is a residential property, was sold in court auction and it was purchased by the decree holder on 22.1.2005 for a sum of Rs.3,44,000/-. The decree amount sought to be realised by that time was Rs.7,88,730/-. The sale was confirmed. An application for delivery was filed. At that time, the writ petitioner filed E.A.No.2169 of 2006 under Section 47 of the Code of Civil Procedure to declare that the sale held on 22.1.2005 is null and void. That application was dismissed for default on 11.12.2007. E.A.No.1695 of 2007 was filed by the petitioner for restoration of E.A.No.2169 of 2006, which was dismissed of default. The court below dismissed E.A.No.1695 of 2007, by the order dated W.P.(C) NO. 5773 OF 2009 :: 2 :: 20.12.2008. Evidence was adduced before the executing court. The executing court considered the evidence. The judgment debtor stated that he is running business in Madras and that he was in Madras at the relevant time in connection with his business. The court below noticed that on 9.7.2007, the petitioner volunteered to settle the matter by paying the amount due to the decree holder and the execution proceedings were accordingly adjourned on several occasions. But the judgment debtor did not appear and did not comply with his promise. Taking into account all the facts and circumstances, the court below dismissed the application filed by the writ petitioner. 2. At the time when the Writ Petition came up for admission, the following interim order was passed on 20.2.2009: “Urgent notice before admission returnable in two weeks. Notice on admission is being ordered only on the submission made by the petitioner that he is prepared to pay the entire amount due as per the decree, interest thereon, 5% of the auction amount and the cost of the proceeding to the decree holder/auction purchaser. Delivery is not being stayed. However, the court below shall not record the delivery for a period of one month.” 3. It is submitted that delivery has not taken place since the respondent has received notice in the Writ Petition by that time. It is also submitted that delivery is to take place today. W.P.(C) NO. 5773 OF 2009 :: 3 :: 4. Learned counsel appearing for the petitioner/judgment debtor submitted, on instructions, that the judgment debtor is prepared to pay the entire decree amount, if he is granted some time. The judgment debtor is present in Court today. It is submitted that the petitioner is prepared to pay Rs.4 lakhs within two weeks and the balance amount within a period of six months. Learned counsel appearing for the decree holder, on instructions, submitted that if the entire balance amount, after payment of Rs.4 lakhs, is paid within a period of three months, the decree holder is prepared to deliver back the property to the judgment debtor and also execute the necessary assignment deed. At the same time, learned counsel for the petitioner submitted that delivery need not be adjourned and that the decree holder may be permitted to take only symbolic delivery permitting the family of the petitioner to continue to reside in the house. In view of the consensus arrived at between the parties, the Writ Petition is disposed of as follows: a) Delivery of the immovable property need not be stayed. The respondent/decree holder is entitled to take symbolic delivery of the property. The writ petitioner, his wife and children and other family W.P.(C) NO. 5773 OF 2009 :: 4 :: members of the writ petitioner/judgment debtor would be entitled to continue to reside in the property and possess and enjoy the property in spite of symbolic delivery. It is agreed by the writ petitioner/judgment debtor that no strangers will be inducted in the property and no encumbrance whatsoever will be created over the property. The judgment debtor undertakes that he will not cut or remove any trees or commit any other acts of waste in the property. b) After taking delivery of the property, it is agreed, that the decree holder will not alienate or encumber the property or commit any act of waste in the property. c) The petitioner/judgment debtor shall pay to the decree holder a sum of Rs.4 lakhs on or before 3.4.2009. On such payment, a receipt shall be issued to the judgment debtor. d) The balance decree amount shall be paid by the petitioner/ judgment debtor to the decree holder within a period of three months from today. e) If the entire decree amount is paid within the aforesaid period, the respondent/decree holder shall deliver back the property to the W.P.(C) NO. 5773 OF 2009 :: 5 :: petitioner and the executing court will record the same and close the Execution Petition recording full satisfaction. In such an event, the respondent shall also execute necessary assignment deed transferring the property in favour of the petitioner or his nominee at the expense of the petitioner. f) If the petitioner fails to pay Rs.4 lakhs as aforesaid, the Writ Petition shall be treated as dismissed. In such an event, the decree holder would be entitled to get actual delivery of the property through the executing court. g) On failure of the judgment debtor to pay the balance decree amount as aforesaid, the decree holder shall pay back Rs.4 lakhs to the judgment debtor within a period of one month after the expiry of the aforesaid three months and in that event also, the Writ Petition shall be treated as dismissed. (K.T.SANKARAN) Judge ahz/