IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 17TH DECEMBER 2010 / 26TH AGRAHAYANA 1932 OP(C).No. 1187 of 2010(O) ------------------------- AGAINST THE ORDER IN EP 248/07 IN OS.172/2003 of ADDL.SUB COURT,KOTTAYAM .................... PETITIONER: ------------------------------ RADHAMANIYAMMA, AGED 67, W/O.KRISHNAN NAIR, BINU MANDHIRAM, T.P.PURAM P.O., VAZOOR, KOTTAYAM. BY ADV. SRI.SAIGI JACOB PALATTY RESPONDENT: --------------- SAJI ABRAHAM S/O.ABRAHAM, VATTAKUZHIYIL, ELAMAPLLY KARA, ANICADU VILLAGE, KOTTAYAM. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1187 of 2010 --------------------------------------- Dated this 17th day of December, 2010 JUDGMENT Judgment debtor in E.P.No.248 of 2007 in O.S.No.172 of 2003 of the court of learned Additional Sub Judge, Kottayam is the petitioner, challenging Ext.P2, sale notice on the ground that upset price fixed therein is meager and that sale of a portion of the property would be sufficient to satisfy the decree. 2. Respondent sued petitioner for specific performance of an agreement for sale of the property or in the alternative, for return of advance money. The dispute was settled and a compromise decree was passed allowing respondent to recover `.1,40,000/- with interest. For recovery of that amount respondent filed E.P.No.248 of 2007 and brought up property of petitioner for sale. By Ext.P1, order upset price was fixed at `.3,80,000/- and sale is scheduled to be held on 20-12-2010. Ext.P2, sale notice is under challenge. It is contended by learned counsel that upset price fixed is only `.3,80,000/- while the property will fetch more than `..Forty Lakhs. It is also contended that petitioner has produced valuation sketch from the Co-operative Bank wherefrom also petitioner had availed a loan. O.P(C).No.1187 of 2010 : 2 : 3. In the agreement for sale as averment in the plaint goes, sale consideration fixed was only `.4,20,000/-. Now upset price fixed for property is `.3,80,000/- subject to the liability of bank to the tune of `.5,86,113/-. Though, petitioner made a claim that property will fetch more than `.Forty Lakhs no sufficient material was produced in the executing court. At any rate, in the light of sale consideration fixed and amount due to the bank for which property bears first charge, I do not find reason to interfere with the upset price fixed by the executing court. However, having regard to the facts and circumstances of the case and considering the difficulty of petitioner stated by learned counsel I am inclined to give three months' time from 05-01-2011 to the petitioner to pay the amount due under the decree. Sale of the property will stand adjourned to a day beyond the said period of three months subject to the following conditions: (i) Petitioner files an affidavit in the executing court before the time scheduled for sale waiving fresh proclamation for such sale. (ii) Petitioner shall deposit `.35,000/- (Rupees Thirty Five Thousand Only) in the executing court for payment to respondent on or before 23-12-2010. (iii) Rest of the amount due under the decree shall be deposited in the executing O.P(C).No.1187 of 2010 : 3 : court in three (3) equal monthly installments beginning from 05-01-2011. Deposit for payment to the respondent shall be made on or before 7th of each month and in case that happens to be a holiday, deposit shall be made on the next working day. It is made clear that by the last installment entire amount due under the decree is paid. (iv) In case any of the above conditions is not complied or entire amount is not paid within the time granted hereby it will be open to the respondent to proceed with sale of the property pursuant to Exts.P1 and P2. (THOMAS P JOSEPH, JUDGE) Sbna/-