IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 WP(C).No. 24475 of 2010(O) -------------------------- CMA.21/2009 of SUB COURT,NEYYATTINKARA OS.722/2002 of I ADDL.M.C.,NEYYATTINKARA .................... PETITIONER(S): ----------------------- RADHAKRISHNAN,S/O.RAJAYYAN,AGED 43 YEARS KRISHNA NIVAS,KALLUVILA VEEDU,KIZHAKKEKKARA, VAZHATHOTTU KONAM,PARASUVAKKAL,PARASSALA, THIRUVANANTHAPURAM. BY ADV. SRI.VINOD J.DEV SRI.PRAMOD J.DEV RESPONDENT(S): ---------------------- ANIL KUMAR,S/O.LAKSHMANAN, NANTHIYANKODU PUTHEN VEEDU,PARASUVAKKAL, PARASSALA,THIRUVANANTHAPURAM-695 502. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24475 of 2010 APPENDIX: PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF ORDER DATED 29.11.2007 IN I.A. 5383/07 AND I.A.537/07. EXT.P2: TRUE COPY OF APPEAL MEMORANDUM DATED 1.7.2009 BEFOR THE HONOURABLE SUB COURT, NEYYATTINKARA. EXT.P3: TRUE COPY OF STAY PETITION No.1072/2009. EXT.P4: TRUE COPY OF EXECUTION PETITION DATED 17.6.2010. EXT.P5: TRUE COPY OF OBJECTION DATED 30.7.2010. RESPONDENT'S EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. Kp/ THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.24475 of 2010 -------------------------------------- Dated this the 19th day of July, 2011. JUDGMENT Notice to the respondent is returned with the endorsement 'addressee left India'. In view of the judgment I propose to pass notice to him is dispensed with. 2. Prayer in this petition is to direct learned First Additional Munsiff, Neyyattinkara to defer execution proceeding in O.S.No.722 of 2002 till adjudication of C.M.A.No.21 of 2009 and the application for stay filed therein. There was an exparte decree against petitioner/judgment debtor and that was put into execution by the respondent/plaintiff. The property was sold. Petitioner filed application to set aside the sale under Order 21 Rule 90 of the Code of Civil Procedure which also ended in a dismissal and the sale was confirmed on 15.10.2009. Following that, respondent filed Ext.P4, application for delivery to which petitioner filed Ext.P5, objection. In the meantime, dismissal of the application to set aside sale was challenged in C.M.A.No.21 of 2009 before learned Sub Judge, Neyyattinkara. Since that appeal was preferred after the prescribed time there was an application to condone the delay. Since application for condonation of delay could not be taken up, petitioner was not able to get any relief from the C.M.Appeal. In the meantime, executing court proceeded with the delivery proceeding. Hence this Original Petition. Learned WP(C) No.24475/2010 2 counsel submitted that pursuant to the order issued by this Court on 04.08.2010 petitioner has deposited `20,000/- in the executing court. Learned counsel submitted that respondent was executing a decree for payment of money and that petitioner is prepared to pay the amount due under the decree. It is also submitted that the C.M.Appeal happened to be dismissed for default and an application for restoration of that appeal is pending. 3. Having regard to the circumstances stated and since petitioner has already deposited `20,000/- in the executing court and has expressed willingness to pay the entire amount due under the decree I am inclined to grant some relief to the petitioner. Resultantly this Original Petition is disposed of in the following lines: i. Learned First Additional Munsiff, Neyyattinkara is directed to keep delivery proceeding in E.P.No.290 of 2006 in O.S.No.722 of 2002 in abeyance for a period of two months from this day. ii. Petitioner shall deposit the entire balance amount due under the decree in the executing court within the said period of two months. iii. In the meantime, it is open to the petitioner to proceed with the application for restoration of C.M.Appeal he has preferred before learned WP(C) No.24475/2010 3 Sub Judge, Neyyattinkara and request for disposal of the stay petition filed along with C.M.Appeal, during the period of two months above stated. THOMAS P.JOSEPH, Judge. cks