IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 FAO.No. 245 of 2009() --------------------- (AGAINST THE ORDER DATED 7/9/09 IN E.A.NO.136/08 IN E.P.NO.13/04 IN O.S. NO.49/01 OF THE SUB COURT, NEDUMANGAD) APPELLANT ----------------------- NIZARUDEEN, S/O.MEERAN PILLAI, V.P.HOUSE, MUTHIYANKUZHY, DAIVAPURA, THENNOOR VILLAGE, NEDUMANGAD. BY ADV. SRI.N.SUKUMARAN RESPONDENT(S): --------------- SASIDHARAN NAIR, S/O.PADMANABHA PILLAI, CHEMPAKAMANGALAM VEEDU, MELTHONNACKKAL, SURIYAGIRI, THIRUVANANTHAPURAM TALUK. ADV. K.JAYAKUMAR FOR R THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 23/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO.3490/09 IN F.A.O. NO.245/2009 DISMISSED 23/3/2010 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- C.K.ABDUL REHIM, JUDGE. PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ F. A. O. No.245 of 2009 ------------------------------------------------ Dated this the 23rd day of March, 2010 JUDGMENT Pius C. Kuriakose, J Under challenge in this appeal is the order of the execution court dismissing the application filed by the appellant/judgment debtor for setting aside execution sale of his property. The appellant filed the application invoking Rule 90 of Order 21 alleging fraud and material irregularity in the publication and conduct of sale. The court below has under the impugned order dismissed the application inter alia on the ground of inordinate and unexplained delay. 2. Even though Sri.N.Sukumaran, the learned F. A. O. No.245 of 2009 -2- counsel for the appellant addressed strenuously and persuasively on the various grounds raised in the memorandum of appeal, we were not impressed. We suggested to both sides considering the fact that the property in question is the residential abode of the appellant that the issue be settled between them amicably. In fact, we summoned both parties to this Court and both of them were present before us on 03/03/10. We suggested to the parties that the appellant pays and the respondent (the auction purchaser decree holder) receives a sum of Rs.10 lakhs in full and final settlement of the issues between them. The immediate reaction of the decree holder/auction purchaser who was present before us through his duly constituted power of attorney holder was that F. A. O. No.245 of 2009 -3- the decree holder will not be prepared to receive anything less than Rs.11 lakhs. However, due to the intervention of his Advocate Sri.V.Jayakumar, we were informed, that if the sum of Rs.10 lakhs suggested by us is paid immediately, the decree holder will be prepared to receive the amount in full and final settlement. However, the judgment debtor/appellant told us that he will not be able to offer anything more than Rs.4,01,000/- inclusive of Rs.3,01,000/- already under deposit before the execution court. On such a response from the appellant, we adjourned the case to 04/03/10 observing that an out of court settlement between the parties is out of question. However, on 09/03/10 when the appeal came up before us for disposal Sri.N.Sukumaran, the learned counsel F. A. O. No.245 of 2009 -4- would inform us that though his party was not very enthusiastic in accepting our suggestion on the previous day, he has become agreeable to pay a sum of Rs.10,00,000/- inclusive of the amount already under deposit before the court below in full and final settlement of the respondent's claim over the property. His only further condition was grant of five months' time and permission for selling a portion of the property for the purpose of paying the respondent. On hearing the above submission, we directed the appellant to file an affidavit incorporating his agreement. An affidavit was accordingly filed and on going through the affidavit we found that the appellant was still insisting on six months' time from 15/03/10. Sri.V.Jayakumar would submit that the F. A. O. No.245 of 2009 -5- respondent/auction purchaser is not willing to grant more than three months' time. We heard both sides again on 16/03/10 as to the time to be granted to the appellant for paying off the respondent and after some discussions with the counsel at the Bar we passed the following order on 16/03/10:- “The learned counsel for the appellant is directed to get instruction from his client as to whether he is ready to pay off the respondent on or before 31/07/10. Post day-after-tomorrow.” 3. Today when the matter came up before us again, Sri.N.Sukumaran submitted that the appellant will be satisfied with time till 31/07/10. Under the above circumstances, notwithstanding our views regarding the merits of the appeal, we are inclined to allow the appeal passing the F. A. O. No.245 of 2009 -6- following conditional order:- The impugned order will stand set aside and the appeal will stand allowed subject to the following conditions:- 1) The appellant shall pay to the respondent on or before 31/07/10 a sum of Rs.6,99,000/-. 2) The respondent will be allowed to withdraw the amount of Rs.2,76,000/- already under deposit with the execution court immediately. 3) The appellant is permitted to dispose of the auctioned property either in full or in part for the purpose of raising funds necessary for making payment to the respondent as ordered above. Once the appellant identifies a purchaser the matter will be reported to the execution court with F. A. O. No.245 of 2009 -7- notice to the respondent. That court will ensure by passing appropriate directions to both sides that the payment as ordered above is made to the respondent and the terms of the compromise arrived at in this court are implemented fully and finally. It is needless to mention that if the payment as ordered above is not made on time, this judgment will not become operative in which case the appeal will stand dismissed. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-