IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 FAO.No. 87 of 2008() -------------------- AGAINST THE ORDER DATED 27/10/2005 IN EA.26/05 in EP.44/90 IN LAR.23/1985 of SUB COURT,THODUPUZHA .................... APPELLANT/PETITIONER/JUDGEMENT DEBTOR ------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, IDUKKI. BY SR. GOVERNMENT PLEADER SRI. R. LAKSHMI NARAYAN. RESPONDENT(S): DECREE HOLDER/CLAIMANT ------------------------------------------------------------------- PADMANABHA PILLAI RAJAPPAN PILLAI, KARAVATTU VANIYAPPURAYIL, KUDAYATHOOR. ADV. SRI.K.K.CHANDRAN PILLAI FOR R1 SRI.A.S.SAJUSH PAUL FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 87 of 2008 & C.M.Appln. No.710 of 2008. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of July, 2009. JUDGMENT Bhavadasan, J, The State, aggrieved by the order of dismissal of E.A. 26 of 2005 in E.P. 44 of 1990 in L.A.R.23 of 1985 by the execution court, has come up in appeal. 2. The application was one to set aside the sale conducted in E.P. 44 of 1990 in L.A.R.23 of 1985. The contention taken by the State was that the property having an extent of 5 cents situate in the heart of Thodupuzha town was sold for a meager amount. Since the proper valuation of the property had not been obtained, they pointed out that the sale is vitiated. The court below on a consideration of the materials before it found that the petition is untenable and dismissed the same. 3. C.M.Appln. No. 710 of 2008 was filed in this appeal to condone the delay of 772 days in filing the appeal. FAO.87/2008. 2 Order in the E.A. is assailed in the appeal. 4. The award was passed by the reference court on 27.10.2005. On 16.11.2005 the copy application was filed. Ultimately, the copies were collected on 3.12.2005. Due to administrative delay the appeal could not be filed in time. On 6.10.2007, it is stated that the District Collector has issued directions to put up the proposal for filing of an appeal before the Advocate General and proposal was sent on 23.10.2007. Later statement of facts in the case was obtained on 10.3.2008 and the Government Pleader got the records on 14.3.2008. This long delay, according to the State, was due to administrative exigencies and there was no wilful laches or negligence on the part of the State in not filing the appeal within the stipulated time. State also pointed out that unless the sale is set aside, the State would be put to irreparable loss and injury. 5. A counter affidavit has been filed by the respondent opposing the delay petition. It is pointed out that there is no merit FAO.87/2008. 3 in the contentions taken in the petition for condonation of delay and that the inordinate delay has not been properly explained. It was pointed out that the sale had been held on 22.11.2004 for a sum of Rs.2,81,000/-, which was the balance amount due to the respondent as per the decree sought to be executed. E.P. was pending for several years and for a long time the State did not deposit the amount and ultimately the property had to be brought to sale. Decree holder bid the property in court auction. It is also pointed out that the petition filed before the court below for setting aside the sale was after the stipulated period and the State had filed the petition to condone the delay. It is thus pointed out that there is continuous delay on the part of the State in taking appropriate steps at the appropriate stage and at the appropriate time due to laches on their part. It is pointed out that there were no grounds made out to condone the delay. 6. The contention of the State in the delay condonation petition is that the delay was due to administrative exigencies. It is FAO.87/2008. 4 true that the affidavit filed on behalf of the State does not contain much details and only contains some dates. There is no serious attempt on the part of the State to explain the reasons for the delay and a very casual affidavit has been filed. The contention of the respondent in the delay condonation petition cannot be ignored. 7. But the court is given to understand that subsequently the State had deposited the amount due to the decree holder and considering that fact the sale may be set aside. Learned counsel appearing for the respondent admitted that the amount had been deposited, and that the decree holder, who is the auction purchaser has no objection in setting aside the sale. 8. It is true that five cents of property in the heart of Thodupuzha town with a building thereon was sold for a sum of Rs.2,81,000/-. The decree holder had purchased the property in auction. May be the property is much more valuable. Whatever that be, now that the entire amount has been deposited before the court below. One need not stick of technicalities and may proceed FAO.87/2008. 5 to do justice. Since the decree holder is not very particular to retain the property, and since the State has deposited the entire amount, it is only just and proper that the sale be set aside. In the result, the petition to condone the delay is allowed, so also the present appeal and the impugned order is set aside, so also the sale. There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.