IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 OP(C).No. 2778 of 2011(O) -------------------------------------- O.S.174/2010 OF SUB COURT, PAYYANNUR. ............. PETITIONER: -------------------- PANAKKAL BABY, AGED 60 YEARS, S/O.LATE CHACKO, VAYAKKARA AMSOM, NERUMBA DESOM, TALIPARAMBA TALUK. BY ADV. SRI.M.SASINDRAN, SRI.VENUGOPAL V. RESPONDENT(S): -------------------------- PUTHANPURAKKAL JOSEPH, S/O.YOHANNAN, NERUMBA DESOM, VAYAKKARA AMSOM, TALIPARAMBA TALUK-670 141. BY ADV. SRI.T.MADHU. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 2778 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S. NO.174/2010 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, PAYYANNUR. EXT.P2: COPY OF THE INTERLOCUTORY APPLICATION FILED BY THE RESPONDENT HEREIN AS I.A. NO.121/2011. EXT.P3: COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN O.S. NO.174/2010. EXT.P4: COPY OF THE ORDER IN I.A. NO.121/2011 IN O.S. NO.174/2010 OF THE SUBORDINATE JUDGE, PAYYANNUR. EXT.P5: COPY OF THE AFFIDAVIT SUBMITTED BY THE PETITIONER HEREIN AS I.A. NO.905/2011. EXT.P6: COPY OF THE ORDER PASSED BY THE SUBORDINATE JUDGE'S COURT, PAYYANNUR IN I.A. NO.905/2011 IN O.S. NO.174/2010. EXT.P7: COPY OF THE PETITION FILED BY THE PETITIONER ALONG WITH THE SCHEDULE FOR DEPOSITING THE AMOUNT. EXT.P8: COPY OF THE SANCTION PETITION FILED BY THE PETITIONER DATED 02/08/2011. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.2778 of 2011 --------------------------------------- Dated this 24th day of November, 2011 JUDGMENT Defendant in O.S.No.174 of 2010 of the Court of learned Sub Judge, Payyannur is the petitioner before me challenging Ext.P6, order refusing to extent time for deposit as requested for in I.A.No.905 of 2011. 2. Respondent filed the suit for a decree for specific performance of an (alleged) agreement for sale or in the alternative, for recovery of advance sale consideration. Respondent filed Ext.P2, application for an order of prohibitory injunction to restrain petitioner obstructing entry of respondent into the suit property and taking yield. Petitioner preferred Ext.P3, counter affidavit. But, petitioner admitted receipt of `.Five Lakhs from the respondent while denying the allegation that on the date of the agreement, respondent was put in possession of the property. Learned Sub Judge directed petitioner to deposit `.Five Lakhs before 25.04.2011. On 12.04.2011 learned Sub Judge passed Ext.P4, order that there will be an order of injunction against petitioner from 25.04.2011 if the amount is not deposited before 25.04.2011. Petitioner filed O.P(C).No.2778 of 2011 -: 2 :- Ext.P5, application on 19.04.2011 to extent time for deposit claiming that he was under the impression that the deposit was to be made before 25.06.2011 and that it was difficult for him to raise the sum of `.Five Lakhs before 25.04.2011. Ext.P5, application was dismissed by Ext.P6, order dated 16.06.2011 stating that “time cannot be extended. Hence dismissed”. 3. It is contended by learned counsel for petitioner that on 02.08.2011 petitioner filed Exts.P7 and P8, applications to receive the amount enlarging time but that was not considered. Learned counsel submits that petitioner found it difficult to raise the sum of `.Five Lakhs during a short time. 4. Learned counsel for respondent has referred me to the statements in the affidavit in support of Ext.P5, application and Exts.P7 and P8, applications to contend that petitioner has no consistent case. 5. I am not at the question whether petitioner has a consistent case as to why he did not deposit `.Five Lakhs before 25.04.2011. Petitioner got only a small time to raise the sum of `.Five Lakhs. 6. Sec.148 of the Code of Civil Procedure enables the Court to extent the time fixed by it even after expiry of the O.P(C).No.2778 of 2011 -: 3 :- period. Having regard to the circumstances I am inclined to think that learned Sub Judge ought to have allowed the request made in Ext.P5, application. Learned counsel submits that petitioner is prepared to deposit the amount before 30th of this month. That submission is recorded. Resultantly this original petition is allowed as follows: (i) Ext.P6, order is set aside. (ii) Ext.P5, application is allowed. (iii) Petitioner is permitted to deposit the sum of `.5,00,000/- (Rupees Five Lakhs Only) in the court below on or before 30.11.2011. After the amount is thus deposited, there will be no order of injunction against petitioner and in case the amount is not deposited as aforesaid, order of injunction passed by the learned Sub Judge against petitioner will remain in force. (iv) Parties or any of them may request learned Sub Judge to transmit the amount if deposited either to the Treasury or a Nationalised Bank of the petitioner's choice so that the amount will generate interest. (THOMAS P. JOSEPH, JUDGE) Sbna/-