IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 WP(C).No. 995 of 2009(R) ---------------------------------------- EA.337/2008 IN OS.78/2002 of SUB COURT, ALAPPUZHA .................... PETITIONER: TITTO ABRAHAM, S/O.P.S. ABRAHAM, AGED 48 YEARS, PUTHEPURYIL HOUSE, KAINADY.P.O, ALAPPUZHA. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW SRI.SUNIL KUMAR A.G RESPONDENT: MUTHOOT BANKERS, REP. BY ITS MANAGING PARTNER, GEORGE ALEXANDER, PUTHENVEETIL BUILDING, PAZHAVANGADI, RANNI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.995 of 2009 R -------------------------- JUDGMENT Petitioner is the judgment debtor in O.S.No. 78/02 on the file of the Sub Court, Alappuzha. The respondent/decree holder filed E.P.No.86/06 for execution of the money decree obtained in the said suit. Petitioner/judgment debtor filed E.A.No. 337/08 before the execution court under Order XXI Rule 83 CPC for postponing the sale of the property, proclaimed for sale, enabling him to raise the decreetal amount and satisfy the decree by mortgaging the property proclaimed for sale, which has already been attached before judgment in the suit. The court below, vide Exhibit P3 order, dismissed the said application observing that the amount claimed in the execution petition is Rs.24,77,000/- and odd; that the objection is filed to protract the matter; that the suggestion made by the court to pay at least Rupees Ten lakhs within a period of six months, as agreed to by the counsel WPC 995/09 2 for the respondent/decree holder, was not acceded to by the petitioner/judgment debtor; that despite lapse of more than six years, no amount at all is paid by the petitioner/judgment debtor and that the reasons stated cannot be blindly believed and leave granted to the petitioner/judgment debtor as prayed for. 2. It is contended before me by the learned counsel for the petitioner that the property that is brought to sale is having an extent of nearly five acres and is worth a few crores and that if it is sold in court auction, there is no chance of any strangers coming forward to purchase the property and the respondent/decree holder may knock off the property for the amount covered by the EP. The submission so made is no reason to allow the petition. Counsel further submits that if attachment is raised and permission is granted, the petitioner/judgment debtor will mortgage the property to the Kainady Branch of State Bank of WPC 995/09 3 India and procure sufficient amount to discharge the entire debt, for which, he wants only two months time. 3. In the above circumstances, it is ordered that the sale posted to tomorrow shall stand adjourned by one month. In the meanwhile, the petitioner/judgment debtor shall obtain letter from the Manager of the Kainady Branch of State Bank of India agreeing to advance amounts of not less than Rupees Twenty six lakhs on the petitioner/judgment debtor creating an equitable mortgage of the property of about five acres now brought to sale provided, the court below will raise the attachment effected on the said property and stating therein further that they have received from the petitioner the title deeds in relation to the said property with the necessary encumbrance certificates and are convinced of clear title of the petitioner over the property brought to sale except the attachment effected by the court in O.S.No.78/02 and that they WPC 995/09 4 will not return the title documents and encumbrance certificates without obtaining orders from the court below. If such a letter is produced from the Bank, the court below shall pass an order raising the attachment and permitting the petitioner to mortgage the property to the Kainady Branch of State Bank of India and procure amounts, on condition that amounts sufficient to satisfy the decree in the suit shall be deposited by the Bank directly before the execution court and that the title documents and encumbrance certificate produced before the Bank shall not be released or returned by them to the petitioner/judgment debtor without obtaining leave from the court below. If at all the court finds that there is only some procedural delay in the bank accepting the equitable mortgage and releasing the amount, the court below shall further adjourn the sale granting the required time for the purpose, so, however, that the petitioner shall not exploit the WPC 995/09 5 benevolent approach taken by this Court to the detriment of the respondent/decree holder. With the above directions, I dispose of this writ petition. Petitioner is directed to produce a copy of this judgment before the execution court with copy to counsel for the respondent/decree holder, as this writ petition is being disposed of without notice to them. Petitioner may move appropriate petition in the court below forthwith producing also copy of this judgment. It is made clear that the impugned order shall not be a bar for the court below in passing appropriate orders on the said application consistent with the observations and directions aforesaid. Issue copy of this judgment to the counsel for the petitioner urgently. 15th January, 2009 (K.P.Balachandran, Judge) tkv