IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 WP(C).No. 23755 of 2010(O) -------------------------- EP NO.57/2005 IN OS.212/2002 of MUNSIFF COURT, DEVICOLAM .................... PETITIONER(S): --------------- AUGUSTHY, S/O.VARKEY, AGED 63 YEARS, CHIMMAKKATT HOUSE, KALUMKUCITY KARA, RAJAKKADU VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.S.JIJI RESPONDENT(S): --------------- KATUS MATHEW, S/O.A.J.MATHEW, ALAPPATTU HOUSE, POOPPARA KARA, POOPPARA VILLAGE, IDUKKI DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.23755 of 2010 -------------------------------------- Dated this the 29th day of July, 2010. JUDGMENT Judgment debtor in E.P.No.57 of 2005 in O.S.No.212 of 2002 of the court of learned Munsiff, Devikulam is the petitioner before me. He has suffered a decree for payment of money to the respondent. The suit was instituted in the year, 2000 and for execution of the decree, respondent filed execution petition in the year 2005. Respondent, in his attempt to realise the amount sought personal execution against petitioner and has obtained a warrant of arrest against him on a finding that in spite of having the means he has neglected or refused to pay the amount. Petitioner did not pay the amount and preferred to suffer detention in the civil prison for three months. Hence property of petitioner was attached and brought up for sale. At that stage petitioner filed Ext.P4, application requesting the executing court to exclude five (5) cents and house where he is residing from the proclamation for sale. That application was dismissed by the executing court vide Ext.P5, order which is under challenge in this petition. Learned counsel states that property is very valued being adjacent to a public road and that sale of a portion of the property is sufficient to discharge the decree debt. 2. It is seen that even as in the year 2005 when the respondent filed execution petition the amount due was Rs.99,942/-. The decree provided WP(C) No.23755/2010 2 for future interest and cost. It has also come out that the very same property (20 cents) which is attached and brought up for sale was mortgaged to the Co- operative Bank on 22.09.2000 for Rs.25,000/- and even according to the petitioner he has received a notice from that bank for payment of around Rs.75,000/-. Executing court has stated that the suit was instituted in the year, 2000 and the execution petition was filed in the year 2005 but during the last ten years and not to say even after execution petition was filed no attempt was made by petitioner to pay even a single pai. Executing has court refused to accept request of petitioner to exclude five cents and house and consequently dismissed Ext.P4, application. On hearing counsel for petitioner and going through the order under challenge, I do not find reason to interfere. 3. Learned counsel requests that petitioner may be granted some time to discharge the liability. Having regard to the circumstances stated by learned counsel I am inclined to grant some time to the petitioner to discharge the liability. Resultantly this Writ Petition is dismissed. But petitioner is granted two months time to discharge liability under decree. The sale if scheduled shall be adjourned to a day after two months from this day on condition that if the property is already proclaimed for sale petitioner shall on or before 03.08.2010 file affidavit in the executing court waiving fresh proclamation for such sale. In WP(C) No.23755/2010 3 case that condition is not complied or, the amount is not paid within the time aforesaid, it will be open to the respondent to proceed with execution. THOMAS P.JOSEPH, Judge. cks