IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 4TH JULY 2011 / 13TH ASHADHA 1933 OP(C).No. 1342 of 2011(O) ------------------------- AGAINST THE ORDER IN EP 296/2004 IN OS.164/1997 of ADDL.SUB COURT,KOTTAYAM .................... PETITIONER: --------------------- UNNIKRISHNAN NAIR, AGED 51, S/O.LATE P.K.NAIR, NADUVILE THEKKEDATH, VAIKOM TALUK, VAIKOM. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT -------------------- MANIKANAM PARAMBIL CHITTY FUND REP.BY ITS MANAGING PARTNER THANKAMMA MATHEW NADUVILA VEETIL, MANIKANAM, PARAMBIL UDAYAMPEROOR MURI, MANAKUNAM VILLAGE, ERNAKULAM DISTRICT. ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dmb O.P.(C).No. 1342 of 2011 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- COPY OF THE EXECUTION PETITION NO.296 OF 2004 IN O.S.NO.164 OF 1997 ON THE FILE OF THE SUB COURT, KOTTAYAM DATED 12.08.2004 EXT.P2:- COPY OF THE ORDER PASSED IN E.A.NO.265 OF 2011 IN E.P.NO.296 OF 2004 IN O.S.NO.164 OF 1997 DATED 26.3.2011 ON THE FILE OF THE SUB COURT, KOTTAYAM EXT.P3:- COPY OF THE E.A.NO.280 OF 2011 IN E.P.NO.296 OF 2004 IN O.S.NO.164 OF 1997 DATED 2/3/2011 ON THE FILE OF THE SUB COURT, KOTTAYAM EXT.P4:- COPY OF THE VALUATION CERTIFICATE ISSUED BY THE TAHSILDAR, VAIKOM TALUK OFFICE DATED 1/11/2010 RESPONDENTS' EXHIBITS:- NIL //TRUE COPY// P.A TO JUDGE dmb THOMAS P. JOSEPH, J. ~~~~~~~~~~~~~~~~ O.P.(C). No.1342 of 2011 ~~~~~~~~~~~~~~~~~ Dated this the 4th day of July 2011 J U D G M E N T Ext.P2, order is under challenge at the instance of petitioner/judgment debtor. Learned Sub Judge, Kottayam passed decree for payment of money in favour of respondent, in O.S.No.164 of 1997. Since the amount was not paid, respondent sought execution in E.P.No.296 of 2004 and proceeded against property of petitioner. The property was sold according to the petitioner, on 12.1.2004 and the sale was confirmed on 11.11.2007. In 2011, petitioner filed E.A.No.265 of 2011 under Sec.151 of the Code of Civil Procedure (for short, “the Code”) seeking permission to deposit the entire amount in court. But that application was dismissed by Ext.P2, order dated March 26, 2011 as it is hopelessly barred by limitation. The said order is under challenge. Learned counsel submitted that O.P.(C). No.1342 of 2011 -: 2 :- petitioner is prepared to pay the entire amount due to the respondent with interest. It is pointed out from Ext.P4, that the property is worth `1 Crore but was knocked down by the respondent for a paltry sum of around `3 lakhs. Learned counsel for respondent has contended that the sale was conducted on 11.11.2003 and confirmed on 12.1.2004. It is also contended that E.A.No.265 of 2011 is barred by limitation. 2. Be it on 12.1.2004 or 11.11.2003 that the sale was conducted or, be it that the sale was confirmed on 11.11.2007 or 12.1.2004 as parties now contended, either way, E.A.No.265 of 2011 is filed admittedly after the period of limitation prescribed for an application under Order XXI, Rule 89 of the Code. Hence that application is not maintainable as rightly found by the learned Sub Judge. So far as the offer for payment of amount is concerned, respondent is not agreeable for the same. In that situation I cannot impose upon respondent a settlement or a direction O.P.(C). No.1342 of 2011 -: 3 :- to receive the amount. Counsel for petitioner submitted that petitioner has filed an application under Sec.47 of the Code challenging the sale on various grounds and that the said matter is pending. Let that matter take its course. The reliefs sought in the writ petition cannot be allowed. The writ petition is dismissed. In view of the dismissal of the writ petition, the amount if any deposited by petitioner in the executing court pursuant to the interim order passed by this Court could be withdrawn by him. THOMAS P. JOSEPH, JUDGE. Jvt