IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 OP(C).No. 3279 of 2011(O) ------------------------- OS.200/1995 of ADDL.SUB COURT,KOTTAYAM .................... PETITIONERS: ------------------- 1. MATHEW CYRIAC, CHENNOTH HOUSE, NEW KALAVATH RAOD, PALARIVATTOM.P.O., COCHIN-632 025. 2. LATHA MATHEW, W/O.MATHEW CYRIAC, CHENNOTH HOUSE, NEW KALAVATH ROAD, PALARIVATTOM.P.O., COCHIN-632 025. BY ADV. SRI.MATHEW PHILIP EDAPPALLIL RESPONDENT: --------------- LIC HOUSING FINANCE LTD., PATTOM, TRIVANDRUM-695 004, REPRESENTED BY ITS AREA MANAGER. ADV. SRI.R.S.KALKURA FOR R THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 3279 of 2011 2 APPENDIX PETITIONERS' EXHIBITS : EXHIBIT P1 - TRUE COPY OF JUDGMENT DATED 13.12.2000 IN O.S.200/95 BEFORE ADDL.SUB COURT, KOTTAYAM. EXHIBIT P2 - TRUE COPY OF EXECUTION PETITION NO.366/10 DATED 16.11.2010 IN O.S.NO.200/95. EXHIBIT P3 - TRUE COPY OF SCHEDULE OF PROPERTY IN E.P.NO.366/10 IN O.S.200/95. EXHIBIT P4 - TRUE COPY OF AFFIDAVIT AND APPLICATION FOR ATTACHMENT OF PROPERTY. EXHIBIT P5 - TRUE COPY OF THE VALUATION REPORT DATED 11.10.99 OF SRI.V.NALINAKSHA PRABHU RTD. TAHSILDAR. EXHIBIT P6 - TRUE COPY OF THE STATEMENT FILED BY DECREE HOLDER IN E.P.NO.366/10 IN O.S.200/95. EXHIBIT P7 - TRUE COPY OF THE SALE PROCLAMATION IN E.P.NO.366/10 IN O.S.200/95. RESPONDENTS' EXHIBITS : NIL /True Copy/ P.A to Judge THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3279 of 2011 --------------------------------------- Dated this 03rd day of November, 2011 JUDGMENT Judgment debtors in E.P.No.366 of 2010 in O.S.No.200 of 1995 of the Court of learned Additional Sub Judge, Kottayam are the petitioners before me challenging Exts.P7, sale notice. It is contended that pursuant to the decree, 10cents belonging to the petitioners was sold on 27.11.2003, respondent/decree holder purchased the property and in view of Rule 72(2) of Order XXI of the Code of Civil Procedure (for short, "the Code”) when the respondent/decree holder purchased the property the entire liability under the decree as on that day stands set off. It is also contended that even as per Ext.P6, statement filed by the respondent/decree holder, the amount due as on 27.11.2003 (that 10cents was sold) with interest and cost was `.5,87,814/- and that going by Ext.P6, statement, the amount adjusted in the decree debt by sale of the property is `.2,46,374/- and the balance amount payable as on 27.11.2003 is `.3,41,440.00/-. It is contended by learned counsel that if the purchase of property by the respondent is set off against the amount due, there was no further amount due to the respondent on 27.11.2003, but Ext.P6, O.P(C).No.3279 of 2011 -: 2 :- statement says that even thereafter respondent has claimed interest on the principal amount. Petitioner did not get an opportunity to raise the contention before the executing court, it is contended. 2. Learned counsel for respondent contends that the property was brought up for sale for `.2,46,374/- on which day total amount due to the respondent was `.5,87,814/-, so far as there was no direction as to appropriation of the amount it was open to the respondent to adjust the amount obtained by sale of property towards interest and claim further interest on the principal amount outstanding. 3. In the nature of the contentions advanced, it is appropriate that the executing court is directed to consider the said contention before the property is put for sale. In that view of the matter, I am inclined to direct the executing court to consider the objection raised by the petitioner as to the amount if any due to the respondent. Resultantly this original petition is disposed of as follows: (i) It is directed that sale of the property scheduled to be held on 07.11.2011 will stand adjourned to a day after one month from the said day on condition that petitioners O.P(C).No.3279 of 2011 -: 3 :- file affidavit in the executing court before the time scheduled for sale waiving fresh proclamation for such sale (without prejudice to their contentions raised in the executing court). (ii) Petitioners are permitted to urge their contentions as to their liability if any to pay further amount as claimed by the respondent in the executing court. (iii) Executing court shall decide on that contention within one month from 07.11.2011 and pass appropriate consequential orders. (THOMAS P. JOSEPH, JUDGE) Sbna/-