IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 OP(C).No. 2094 of 2011(O) ------------------------- EP(ARB)No.130/2009 of III ADDL. DISTRICT COURT, KOLLAM .................... PETITIONERS ------------------------------- 1. S.RAMACHANDRAN PILLAI.S @ CHANDRAN PILLAI,S/O.SANKARAN PILLAI, KANJIRAMVILLA VEETTIL, KUNNATHUR VILLAGE, KOLLAM DISTRICT. 2. PADMAJAN,KANJIRAMVILAMELATHIL, KUNNATHUR , KOLLAM. BY ADV. SRI.N.UNNIKRISHNAN RESPONDENT(S): --------------- MUTHOOT LEASING AND FINANCE LTD., BANERJI ROAD, OPP.OF SARITHA THEATRE, KURIAN TOWERS,ERNAKULAM,NOW RENAMED AS MUTHOOT VEHICLE & ASSET FINANCE LTD., REP.BY POWER OF ATTORNEY HOLDER S.SUBASH,PIN 682 018. ADV. SRI.C.S.MANILAL FOR R SRI.S.NIDHEESH FOR R THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2094 of 2011(O) PETITIONERS EXTS: EXT.P1: COPY OF FIR DTD.28.11.2006 IN CRIME NO.574/06 EXT.P2: COPY OF ORDER IN ARBITRATION OP 222/07 DTD.26.8.2009 EXT.P3:COPY OF E.P.NO.130/09 OF 3RD ADDL.D.C., KOLLAM EXT.P4: COPY OF OBJECTION IN EP 130/09 OF 3RD ADDL.D.C., KOLLAM EXT.P5: COPY OF REVIEW PETITION DTD.22.1.2010. EXT.P6: COPY OF SALE PROCLAMATION DTD.8.3.2011 EXT.P7: COPY OF ORDER OF SALE DTD.5.3.2011 EXT.P8: COPY OF ATTACHMENT SCHEDULE DTD.27.3.2009 RESPONDENT'S EXTS: NIL /TRUE COPY/ P.A.TO JUDGE K.T.SANKARAN, J. ---------------------------------- O.P(C)No.2094 OF 2011 ---------------------------------- Dated this the 1st day of July, 2011 JUDGMENT The respondent filed E.P.No.130 of 2009 on the file of the Court of IIIrd Additional District Judge of Kollam for execution of the Award passed by the Arbitrator. The prayer in the Execution Petition is to realise the award amount by attachment and sale of the property belonging to the first petitioner/first judgment debtor. The award was passed on 26.4.2008. The total amount claimed in the Execution Petition is `3,36,776/- together with costs. 2. The Court below issued a sale proclamation for sale of an extent of 177 cents of land belonging to the first petitioner. The order for sale passed by the Executing Court is under challenge in this Original Petition. O.P(C)No.2094 OF 2011 2 3. The learned counsel for the petitioners contended that for realisation of the decree amount, it is not necessary to sell the entire extent of land and it would be sufficient if a portion of the land is sold. It is true that the judgment debtors did not raise any objection to the draft sale proclamation. However, it is a duty of the court, as held in Ambati Narasayya v. M.Subba Rao and another (AIR 1990 SC 119) to ascertain whether it is necessary to sell the entire extent of land for realisation of the decree debt or whether it is sufficient to sell a portion of the property sought to be sold. In the present case, no such exercise is seen done by the Executing Court. 4. The learned counsel for the respondent submitted that even after the order impugned was passed on 5.3.2011, the judgment debtor paid a sum of `75,000/- and got the sale adjourned. At this stage, the judgment debtor may not be heard to contend that the sale proclamation is bad. O.P(C)No.2094 OF 2011 3 5. The learned counsel for the petitioners submitted that the petitioners are prepared to pay off the decree debt within a period of six months by paying the decree debt in six monthly instalments. On instructions, the learned counsel for the respondent submitted that the respondent is not very much interested in depriving the property of the judgment debtor and the respondent would be satisfied if the amount is realised within a reasonable time. 6. Taking into account the facts and circumstances of the case, the Original Petition is disposed of as follows: a) The petitioners shall pay the decree debt to the respondent in six equal monthly instalments. The first instalment shall be paid on or before 5th of August, 2011. The rest of the instalments shall be paid on or before 5th of the succeeding months. If the 5th day of any particular month happens to be a holiday, the petitioners O.P(C)No.2094 OF 2011 4 would be entitled to pay that instalment on the next working day of the month. b) If the petitioners commit default in payment of any of the instalments, the entire amount would become due and the Execution Proceedings shall be proceeded with. c) If it becomes necessary to sell the property in auction, the Executing Court shall order the same to be sold in lots. The Executing Court shall issue a fresh proclamation showing the different lots in the sale proclamation and the extent and description thereof. d) The proceedings for sale in the Execution Petition shall be kept in abeyance for a period of six months to enable the petitioners to pay the amounts in the manner indicated above. However, if default is committed in payment of any of O.P(C)No.2094 OF 2011 5 the instalments, the Execution Proceedings shall be continued from the date of default. e) Even during the aforesaid period of six months, the Executing Court would be entitled to determine the extent and details of the different lots of the property sought to be sold and to settle the sale proclamation. If a sale becomes necessary, the property can be sold in lots in accordance with that proclamation. The direction to keep in abeyance the proceedings for six months would not stand in the way of undertaking this exercise. K.T.SANKARAN, JUDGE. cms