IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 11TH MARCH 2011 / 20TH PHALGUNA 1932 Mat.Appeal.No. 83 of 2005() --------------------------- OP.927/2001 of FAMILY COURT,ERNAKULAM .................... PETITIONERS: APPELLANT/RESPONDENTS 1 & 2 ------------------------------------------ 1. SUNILKUMAR, S/O.SACHIDANANDAN, MANIYELIL VEETTIL, ALAMTHURUTH MURI, VADAKKAKARA VILLAGE. 2. SAVATHRI, M/O.SUNIL KUMAR, MANIYELIL VEETTIL, ALAMTHURUTH MURI, VADAKKAKARA VILLAGE. BY ADV. SRI.A.B.JALEEL SRI.P.H.SHAJI (THRIKKAKARA) RESPONDENTS: PETITIONERS AND 3RD RESPONDENT --------------------------------------------- 1. BABY, AGED 64 YEARS, S/O. KESAVAN, KOCHERY VEETTIL EDAVANAKKAD MURI, EDAVANAKKAD VILLAGE. 2. SHAMMY, D/O.BABY, KOCHERY VEETTIL, EDAVANAKKAD MURI, EDAVANAKKAD VILLAGE. 3. ANIL KUMAR, S/O.SACHIDANANDAN, **- MANIYELIL VEETTIL, ALAMTHURUTH MURI,- DELETED VADAKKAKARA VILLAGE. ** - THE NAME OF THE THIRD RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DT.7.4.2006 IN I.A. NO.788 OF 2006 ADV. SRI.C.ANILKUMAR (KALLESSERIL) FOR R1 & R2 SRI.K.A.JALEEL THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2011, ALONG WITH MA NO. 935 OF 2010. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mat.Appeal.No. 83 of 2005() ORDER ON I.A. NO.1035 OF 2005 ON MAT. APPEAL NO.83 OF 2005 CLOSED. SD/-K.M.JOSEPH, JUDGE SD/- M.L.JOSEPH FRANCIS, JUDGE 11.3.2011 K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mat.Appeal Nos. 83 of 2005 and 935 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of March, 2011 JUDGMENT Joseph J., Being connected these appeals are disposed of by a common judgment. 2. Mat.Appeal No. 83 of 2005 is filed by respondents 1 and 2 in O.P. No. 927 of 2001 on the file of Family Court Ernakulam. The second respondent is the wife of the first appellant and the first respondent is the father of the second respondent. By judgment in O.P. No. 927 of 2001, the Family Court has ordered that the second respondent is entitled to recover a sum of Rs.3 lakhs with 10% interest from the date of O.P. till realisation from the appellants jointly and severally and the articles mentioned in the petition and an amount of Rs.7,000/- from the appellants. Mat.Appeal Nos. 83 of 2005 and 935 of 2010 :2: 3. Mat. Appeal No. 935 of 2010 is filed by the second appellant in Mat. Appeal No. 83 of 2005 challenging the order passed by the Family Court in execution proceedings taken out in O.P. No. 927 of 2001 and challenging the sale held in pursuance of the decree passed in O.P. No. 927 of 2001. By the impugned order the Family Court had dismissed the application to set aside the sale filed under Order 21 Rule 90 of Cr.P.C. 4. During the pendency of these matters, the parties, including the auction purchaser of the property, have apparently come to a settlement. 5. Mat. Appeal No. 83 of 2005: The learned counsel for the appellants does not address any argument before us and we confirm the judgment in O.P. No. 927 of 2001 of the Family Court Ernakulam and the appeal is dismissed. 6. Mat. Appeal No. 935 of 2010: The learned counsel for the auction purchasers would submit that he has no objection if the sale is set aside on condition that they are paid interest at the rate of Mat.Appeal Nos. 83 of 2005 and 935 of 2010 :3: 9% from the day they have deposited the amount. They have deposited the entire Rs.23 lakhs in two stages i.e, Rs.5,75,000/- on 28.12.2009 and Rs.17,25,000/- on 11.1.2010, thus totalling Rs.23,00,000/-. The learned counsel for the appellant would submit that the appellant is agreeable to pay the interest at 9% on the amounts deposited by the auction purchaser, namely Rs.5,75,000/- and Rs.17,25,000/- from the date on which the deposits were made till the date of payment, within a period of two weeks. It is pointed out by the learned counsel for the decree holder that in terms of the decree they are entitled for an amount at the rate of 10% interest. It is pointed out that the amount due would be Rs.7,51,554/- as on 9.1.2011 and it is submitted that the decree holder will be satisfied with the payment the said amount. It is not disputed by the learned counsel for the decree holder that a sum of Rs.4,00,000/- has been already deposited by the appellant. Learned counsel for the appellant agrees that she will deposit the balance amount of Rs.3,51,554/- within a period of two weeks and learned counsel for Mat.Appeal Nos. 83 of 2005 and 935 of 2010 :4: the decree holder is agreeable for the said course. In such circumstances, we set aside the sale subject to the following conditions, that the appellant will pay the interest at the rate of 9% per annum on Rs.5,75,000/- from 28.12.2009 to the additional respondents 2 and 3 within two weeks and shall further pay interest at the rate of 9% per annum on Rs.17,25,000/- from 11.1.2010 till the date of payment within two weeks from today. We also make it clear that upon receipt of the said amount, it will be open to the auction purchaser to withdraw the amount lying in deposit. 7. It is subject to the further condition that the appellant will pay a sum of Rs.3,51,554/- to the first respondent in satisfaction of the decree within two weeks. We make it clear that if the appellant does not pay the amount as aforesaid, the Appeal will stand dismissed. In case the appellant does not pay the amount of Rs.3,51,554/- to the first respondent, it will be open to the first respondent to withdraw the said amount from the amount which has been deposited by the auction purchaser and naturally the sale will Mat.Appeal Nos. 83 of 2005 and 935 of 2010 :5: stand and surplus amount remaining out of the amount deposited by the auction purchaser will be disbursed to the appellant. The first respondent will be entitled for the amount lying in deposit by the auction purchaser. 8. The Mat.Appeal No. 935 of 2010 is disposed of as above. K.M. JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/