IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 OP(C).No. 970 of 2010(O) ------------------------ AGAINST THE ORDER DATED 01/10/2010 IN EP.31/2009 IN OS.168/2008 of SUB COURT, PERUMBAVOOR .................... PETITIONERS : ----------------------- 1. LEKSHMIKUTTY, AGED 74 YEARS, D/O.VELU,KARUTTUKUDY HOUSE, PANICHAM KARA, ASSAMANNOOR VILLAGE. 2. VIJAYAN,S/O.LAKSHMIKUTTY, KARUTTUKUDY VEETTIL, PANICHAYAM KARA,ASSAMANNOOR VILLAGE. BY ADV. SRI.RAJESH VIJAYAN RESPONDENT(S): --------------------- GEORGE, S/O.ETHAPPIRI, MUKALATH VEETTIL, PUNNAYAM KARA, ASAMANNOOR VILLAGE. ADV. SRI.DINESH R.SHENOY SRI.P.K.NEELAKANTAN NAIR THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 970/2010 APPENDIX PETITIONERS' EXHIBITS : EXT.P1: COPY OF THE PLAINT IN O.S.NO.168/08 OF THE SUBORDINATE JUDGES COURT, PERUMBAVOOR. EXT.P2: COPY OF THE EXECUTION PETITION. EXT.P3: COPY OF THE OBJECTION FILED BY THE SECOND PETITIONER. EXT.P4: COPY OF THE OBJECTION FILED BY THE SECOND PETITIONER TO THE PROCLAMATION SCHEDULE. EXT.P5: COPY OF THE OBJECTION TO THE PROCLAMATION SCHEDULE. EXT.P6: COPY OF THE ORDER OF THE EXECUTING COURT VIZ. THE SUBORDINATE JUDGES COURT, PERUMBAVOOR IN E.P.NO.31/09 IN O.S.NO.168/08. //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. ------------------------------------- O.P.(C).No.970 of 2010 O ------------------------------------- Dated this the 12th day of January, 2011 JUDGMENT The judgment debtors challenge the order dated 1st October, 2010 in E.P.No.31 of 2009 in O.S.No.168 of 2010 by which the court below settled the proclamation. The court below directed to incorporate in the proclamation the objections raised by the judgment debtors as well. 2. The suit was filed for specific performance of an agreement for sale. The suit was decreed for return of the advance amount of ` 3,75,000/-. The Execution Petition was filed for realisation of the decree amount by sale of the property which was the subject matter of the suit. 3. It is stated by the judgment debtors that the property sought to be sold is their residential property, O.P.(C) No.970/2010 2 having an extent of 4.10 Ares. The judgment debtors stated before the court below that the first judgment debtor is a toddy tapper and he sustained injuries as a result of a fall from the palm tree. The second judgment debtor is the mother of the first judgment debtor and she is aged more than 70 years. It was also contended that the value of the property as suggested by the decree holder is very low. The decree holder suggested the value at ` 6,65,000/-, the value for which the property was allegedly agreed to be sold to the decree holder. According to the judgment debtors, the total value of the property would come to ` 12 lakhs. The court below directed the objections to be incorporated in the sale proclamation. The order passed by the court below is legal and proper. 4. When the Original Petition came up for admission, an order dated 2.12.2010 was passed by the learned Single Judge, which reads as follows : O.P.(C) No.970/2010 3 “Issue notice to the respondent by speed post. Heard counsel for the petitioners. Perused the order under challenge. Having regard to the contentions raised by the petitioners, it is directed that the sale scheduled to be held on 6.12.2010 will stand adjourned to a day after ten days from that day subject to the following conditions: (i) Petitioners shall file affidavit in the Executing Court waiving proclamation for such sale before the time fixed. (ii) Petitioners shall deposit Rs.50,000/- (Rupees Fifty thousand only) in the Executing Court within ten days from this day for payment to the respondent (without prejudice to the other contentions, if any, of the petitioners). (iii) In case any of the above conditions are not complied, it is open to the Execution Court to proceed with sale of the property pursuant to Ext.P6 O.P.(C) No.970/2010 4 order.” 5. According to the petitioners, they have complied with the interim order. Sri.Dinesh R.Shenoy, the learned counsel appearing for the respondent/decree holder submitted that though the amount of ` 50,000/- was deposited, the affidavit was not filed. 6. The learned counsel for the petitioners submitted that if the property is sold in court auction, the petitioners shall be put to irreparable injury and they will lose their residential property. 7. Taking into account the facts and circumstances of the case, the only relief that can be granted to the petitioners is to grant a breathing time to them to pay off the decree debt. Accordingly, the Original Petition is disposed of as O.P.(C) No.970/2010 5 follows : The petitioners shall deposit before the executing court for payment to the decree holder a sum of ` 50,000/- on or before 10.2.2011. The petitioners shall deposit for payment to the decree holder another sum of ` 1,50,000/- on or before 10.3.2011. The whole of the balance amount shall be deposited for payment to the decree holder on or before 11.4.2011. If default is committed in payment of any of the installments, the execution proceedings shall continue. The petitioners waive fresh proclamation and therefore, in case of sale, it can be had on the same proclamation which has already been issued. K.T.SANKARAN JUDGE csl