W.P.C.No.34949 OF 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 WP(C).No. 34949 of 2009(O) -------------------------- OS.99/2005 of MUNSIFF COURT, KALPETTA .................... PETITIONER: --------------- BHANUMATHI, D/O. RAMAN, AGED 57 YEARS, PUTHIKUDIKUNNU, PINANGODU P.O., VENGAPALLY, VYTHIRI, WAYANAD DISTRICT. BY ADV. SRI.JESWIN P.VARGHESE RESPONDENT: --------------- V.V.MATHEW, S/O. VARGHESE, VATTAKUNNU HOUSE, MADAKUNNU P.O., VENGAPALLY, VYTHIRI, WAYANAD DISTRICT. ADV. SRI.JACOB SEBASTIAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.No.34949 OF 2009 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : AFFIDAVIT FILED BY THE JUDGMENT DEBTOR IN E.P.No.21/09 ON THE FILE OF MUNSIFF COURT, KALPETTA EXHIBIT P2 : E.A.No.78/09 IN E.P.No.21/09 FILED BY DECREE HOLDER IN E.P.No.21/09 ON THE FILE OF MUNSIFF COURT, KALPETTA EXHIBIT P3 : ORDER PASSED BY MUNSIFF OCURT, KALPETTA IN E.P.No.21/09 DTD.12-11-2009 EXHIBIT P4 : RULE 329 PROCLAMATION ISSUED BY MUNSIFF COURT, KALPETTA IN E.P.No.21/09 DTD.16-11-09 RESPONDENT'S EXHIBITS: NIL True Copy P.A.to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.34949 of 2009 --------------------------------------- Dated this 14th day of June, 2010 JUDGMENT Petitioner who has suffered a decree for return of advance money pursuant to an agreement for sale which she did not perform is challenging Ext.P3, order of the executing court directing sale of the property on 09-12-2009. Grievance is that objection raised by petitioner to the execution petition has not been considered by the executing court. At the time of hearing learned counsel for petitioner only requested for opportunity for payment of the decree amount in installments. According to the learned counsel petitioner is unable to raise the entire amount immediately and stated that a sum of Rs.15,000/- is deposited in the executing court pursuant to the order passed by this court on 12-11-2009. He requested that petitioner may be permitted to pay the balance amount in monthly installments of Rs.3,000/-. Learned counsel for respondent would contend that petitioner does not deserve any indulgence since after the decree was passed the property over which there is a statutory charge was sold by her and that in spite of being in possession of sale proceeds not even a single pai was paid to the respondent. W.P.C.No.34949 of 2009 : 2 : 2. So far as challenge to Ext.P3, order is concerned it must fail since no serious objection was raised by petitioner to the execution petition. 3. Having considered the request of learned counsel for petitioner and the difficulties expressed to raise the funds immediately and having heard the views of learned counsel for respondent also I am inclined to permit petitioner to pay the amount due under the decree in installments. Resultantly the writ petition is disposed of in the following lines: (i) Amount if any in deposit in the executing court can be withdrawn by the respondent. (ii) Petitioner shall pay the balance amount due under the decree in monthly installments at the rate Rs.5,000/- (Rupees Five Thousand Only) beginning from 01-07-2010. It is sufficient that deposit is made on or before the 5th of every month. (iii) It is made clear that it will be sufficient compliance of the order for deposit of installment if petitioner paid the amount directly to the respondent and filed memo in the executing court which contained acknowledgment by the respondent as to receipt of the amount. (iv) Petitioner shall file an affidavit in W.P.C.No.34949 of 2009 : 3 : the executing court within ten (10) days from this day waiving fresh proclamation for sale. (v) In case of any two default in payment of the installments or in case entire amount due is not paid as aforesaid, it will be open to the respondent to proceed the execution pursuant to Ext.P3, order. (THOMAS P JOSEPH, JUDGE) Sbna/-