IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 OP(C).No. 615 of 2011(O) OS.124/2005 OF PRL.MUNSIFF'S COURT, KOLLAM EP.31/2010 of MUN-MAGI COURT, S.PARAVOOR PETITIONER ------------------------------ T.VIMALA,D/O.THANKAMMA, VIJAYA NIVAS, KOTTIYAM, THAZHUTHALA VILLAGE, KOLLAM BY ADV. SRI.B.MOHANLAL SRI.T.PRASAD RESPONDENT: --------------- SREEDHARAN PILLAI,S/O.GOPALA PILLAI USHAS, NADUVILAKKARA CHERRY, MAYYANAD VILLAGE, P.O.KOLLAM.PIN-691303 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 615 OF 2011 ------------------------------------------------------ Dated this the 14th day of February, 2011 JUDGMENT The petitioner is the judgment debtor in E.P.No.31 of 2010 in O.S.No.124 of 2005 on the file of the Court of the Munsiff Magistrate, South Paravur. The amount claimed in the E.P. is Rs.1,29,516/-. An item of property having an extent of 3 Ares 65 Sq.m. was sought to be sold in execution of the decree. 2. The petitioner filed O.S.No.83 of 2007 Munsiff's Court, Paravur against the respondent in respect of the remaining portion of the property sought to be sold. That suit is pending. 3. The petitioner also filed E.A.No.114 of 2010 before the Executing Court under Rule 29 O.P.(C) NO.615 OF 2011 :: 2 :: of Order 21 of the Code of Civil Procedure to stay the execution proceedings in E.P.No.31 of 2010. The Executing Court, as per Ext.P3 order dated 14.1.2011, granted the stay of execution on condition of furnishing security for Rs.1,29,516/- within 15 days from the date of order. The petitioner did not comply with the order dated 14.1.2011. Therefore, E.A.No.114 of 2010 was dismissed as per Ext.P4 order dated 31.1.2011. 4. In the execution proceedings, the property was proclaimed for sale on 16.2.2011. At that juncture, the petitioner has filed this Original Petition for the following reliefs: “i) To set aside the execution proceedings and the sale in E.P.No.31 of 2010 on the file of the Munsiff Magistrate Court, Paravur in O.S.No.124 of 2005 on the file of the Munsiff Court, Kollam. ii) To direct the Munsiff Magistrate Court, S.Paravur to allow E.A.No.114 of 2010 and defer the sale O.P.(C) NO.615 OF 2011 :: 3 :: proceedings in E.P.No.31 of 2010 in O.S.No.124 of 2005 of the Munsiff Court, Kollam till the disposal of O.S.No.83 of 2007 on the file of the Munsiff Magistrate Court, S.Paravur without insisting security from the petitioner. iii) To declare that the Execution Proceedings in E.P.No.31 of 2010 in O.S.No.124 of 2005 of the Munsiff Court, Kollam will be subject to the outcome of the order in O.S.No.83 of 2007 on the file of the Munsiff Magistrate Court, S.Paravur. iv. To issue such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case”. 5. The court below passed the order dated 14.1.2011 and granted stay on condition of furnishing security. The petitioner did not comply with the same. Therefore, the only option for the court below was to dismiss E.A.No.114 of 2010. The order dated 14.1.2011 was in favour of the petitioner. Of course, the petitioner is aggrieved by that part of the order by which a condition was fixed. It O.P.(C) NO.615 OF 2011 :: 4 :: cannot be stated that the condition fixed by the court below is illegal and unsustainable. Proviso to Rule 29 of Order 21 of the Code of Civil Procedure provides that if the decree is one for payment of money, the court shall, if it grants stay without requiring security, record its reasons for so doing. The court below directed to furnish security and that was not complied with. The court was, therefore, justified in dismissing E.A.No.114 of 2010. Therefore, the reliefs prayed for by the petitioner in this Original Petition are not sustainable. 6. Lastly, it is contended by the learned counsel for the petitioner that the petitioner is prepared to pay a sum of Rs.50,000/- within a period of one week. If an application for adjournment of sale is made by the petitioner before the court below undertaking to pay O.P.(C) NO.615 OF 2011 :: 5 :: Rs.50,000/- within one week, the Executing Court shall adjourn the sale for such period as it thinks fit. The petitioner waives fresh proclamation. On the failure to deposit the amount, the sale shall take place on the same sale proclamation. The Original Petition is disposed of as above. K.T.SANKARAN, JUDGE. cms