IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 WP(C).No. 5242 of 2009(O) OS.6 6/1999 of SUB COURT,NEYYATTINKARA .................... PETITIONER: PLAINTIFF: DECREE HOLDER: --------------- C.JOHNSON, S/O.P.CHELLAPPAN, AGED 62, R/AT.JITHALAYAM, KELAYIL, OTTASEKHARAMANGALAM P.O., KEEZHAROOR VILLAGE, NEYYATTINKARA TALUK. BY ADV. SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP RESPONDENT: DEFENDANT: JUDGMENT DEBTOR: --------------- P.CHRISTUDES, AGED 50, S/O.PONNU NADAR, KRIPA BHAVAN, KARIKKOTTUKUZHI, CHEMBOOR, OTTASEKHARAMANGALAM PO., KEEZHAROOR VILLAGE NEYYATTINKARA TALUK. ADV. SRI.G.SUDHEER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 5242 OF 2009 O ------------------------------------------------------ Dated this the 4th March, 2009 JUDGMENT The petitioner is the decree holder in O.S.No.6 of 1999, on the file of the Court of the Subordinate Judge of Neyyattinkara. The suit was filed by him for realisation of money. A compromise decree was passed, by which the respondent/judgment debtor agreed to pay a sum of Rs.2,30,000/- in full and final settlement of the claim made in the plaint. The decree also provides that the properties of the judgment debtor shall be a charge for the decree debt. Time for payment was fixed as three months. The judgment debtor did not comply with the terms of the compromise. E.P.No.63 of 2002 was filed by the petitioner for realisation of Rs.2,80,600/- and costs by sale of the immovable property belonging to the judgment debtor. The judgment debtor contended that it is not necessary to sell the entire extent of land belonging to him and that if the entire property is sold, he would lose his residential building as well. Accordingly, an extent of two cents with the house thereon was excluded from the purview of sale. Fresh draft proclamation was also submitted by the decree holder as directed by the court. It is submitted that the proclamation is not so far settled. W.P.(C) NO.5242 OF 2009 :: 2 :: 2. The judgment debtor filed the Execution Application dated 5.12.2008 (Ext.P9) for permission to pay the decree amount in instalments of Rs.2,000/-. There is an alternative prayer to allow him to sell the property by private sale so as to pay off the decree debt. The application was filed under Rule 83 of Order XXI and Section 151 of the Code of Civil Procedure. It is submitted by the counsel for the petitioner that the said application is pending. 3. The grievance of the petitioner is that though large amounts are due to him and though the Execution Petition was filed in 2002, he has not received the amount decreed as per the terms of the compromise decree. The relief sought for in the Writ Petition is to direct the court below to take prompt steps for sale of the property for realisation of the money due under the decree. The petitioner submits that his daughter's marriage is to take place in April, 2009. 4. The grievance of the petitioner appears to be genuine. The decree was passed in terms of the compromise on 13.12.2001. The judgment debtor did not comply with the conditions of the compromise. The decree holder was constrained to file an Execution Petition in 2002. The amount is not paid in full even now. The request of the judgment debtor to exclude his residential building was also accepted by the court. W.P.(C) NO.5242 OF 2009 :: 3 :: Still, the amount is not realised by sale of the property. The application under Rule 83, prima facie, does not appear to be maintainable as there is a charge on the property as per the decree. The Writ Petition is accordingly disposed of as follows: a) The executing court shall proceed with the Execution Petition promptly. The request for adjournment of sale need not be entertained unless there are compelling and genuine reasons. b) The court below shall settle the proclamation and proceed with the sale in accordance with law. (K.T.SANKARAN) Judge ahz/