IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 WP(C).No.33902 of 2008(J) -------------------------- OS.649/2003 of PRINCIPAL MUNSIFF, NEYYATTINKARA (I.A.1672 & 1673 OF 2005) .................... PETITIONERS/DEFENDANTS 1 TO 4/JUDGMENT DEBTORS ------------------------------------------------------------------- 1. SATHYABHAMA, AGED 67, D/O NARAYANI AMMA, THEKKEPUTHENVEETTIL, ANMOTTUKONAM, NADAVOORKOLLA DESOM, KOLLAYIL VILLAGE, AMARAVILA P.O. 2. OMANAYAMMA, W/O SATHYABHAMA AGED 47, THEKKEPUTHEN VEETTIL, ANMOTTUKONAM, NADAVOORKOLLA DESOM, KOLLAYIL VILLAGE, AMARAVILA P.O. 3. JAYAKUMARI, D/O SATHYABHAMA, RESIDING AT THEKKEPUTHEN VEETTIL, AMARAVILA P.O. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT/PLAINTIFF/DECREE HOLDER: --------------------------------------------------- VIKRAMAN NAIR, S/O MADHAVAN PILLA, KALAYIL VILLA PUTHENVEETTIL, ARAYOOR DESOM, CHENGAL VILLAGE, ARAYOOR P.O. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.33902 of 2008 ------------------------------------------------ Dated this the 17th day of November, 2008 JUDGMENT Heard the counsel for the petitioners who were defendants in O.S.649/03 instituted by the respondent on the file of the Munsiff's Court, Neyyattinkara. The suit was for specific performance of an agreement to sell the scheduled property entered into on 14/02/03. The plaint in the suit is Ext.P1. The said suit was decreed ex parte decreeing the suit in terms of the plaint. The decree holder filed execution petition for getting sale deed executed. In the meanwhile, petitioners filed I.As.1672/05 and 1673/05 respectively to set aside ex parte decree and to condone the delay in filing petitions to set aside ex parte decree. Though that was allowed by the trial court vide Ext.P1 order, that was taken up in C.R.P before this Court and this Court vide Ext.P2 order has set aside the common order passed by the Munsiff on I.As.1672/05 and 1673/05. The matter was taken up by the petitioners to the W. P. C. No.33902 of 2008 -2- Supreme Court and the Apex Court vide Ext.P3 order dismissed the Special Leave petition holding that there is no ground to interfere with the impugned order of this Court. 2. It is submitted by the counsel for the petitioners that pursuant to Ext.P3 order of the Apex Court they have filed appeal as A.S.153/08 before the Sub Court, Neyyattinkara against the ex parte decree in the suit with Ext.P7 delay condonation petition wherein all the details of the proceedings initiated by the petitioners are detailed as grounds to condone the delay. They also filed Ext.P8 petition before the Appellate Court for stay of execution but the Appellate Court did not grant any stay as the delay petition also was pending and the appeal had not been admitted. However, in the meanwhile, the execution court ordered delivery vide Ext.P11 order dismissing the stay petition filed by the petitioners before the execution court as well vide Ext.P10 order dt.06/11/08 and delivery is W. P. C. No.33902 of 2008 -3- ordered to be effected on 30/10/08 by Ext.P11 and for report to 31/10/08. Counsel for the petitioners submits that delivery could not be effected on 30/10/08 for reason of obstruction and delivery stands posted to tomorrow viz. 18/11/08 and that in the event of delivery being effected, the petitioners will be thrown to streets as they have no other building other than their residential building with 12 cents of property which is the scheduled property. Counsel further submits that in fact the suit agreement on which the decree was passed was executed by way of security for a loan availed of by the second petitioner and that the agreement itself was for sale of property for Rs.50,000/- whereunder Rs.40,000/- was advanced when the value of the property per cent is above Rs.2 lakhs the property being close to National Highway and that in case delivery is effected on the basis of the ex parte decree petitioners would be deprived of an opportunity to seek for reliefs in the appeal W. P. C. No.33902 of 2008 -4- already filed by them as A.S.153/08 before the Sub Court, Neyyattinkara. 3. Having heard the counsel for the petitioners at length and the delivery being posted to tomorrow, I am not of the view that notice need be issued to the respondent especially in view of the nature of the judgment that I propose to make in this Writ Petition. 4. It is ordered that delivery of the property shall stand stayed by one month. In the meanwhile, the Sub Judge, Neyyattinkara shall dispose of the delay condonation petition and the stay petition in A.S.153/08 passing appropriate orders thereon. As to whether delivery is to be effected on the expiry of the above one month will depend on the orders that the Appellate Court passes on the delay condonation petition and the stay petition. The petitioner is directed to produce copy of this judgment before the execution court as also before the Sub Court, Neyyattinkara where A.S.153/08 is pending to enable compliance W. P. C. No.33902 of 2008 -5- with the above directions and with notice to the respondent/decree holder as this judgment is being passed without notice to the respondent/decree holder. 5. Issue urgent copy to the counsel for the petitioners. In the meanwhile, the Registry shall communicate the stay order to the execution court forthwith. K.P.BALACHANDRAN, JUDGE kns/-