IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 WP(C).No. 5745 of 2010(O) ------------------------- EP NO.19/2009 IN OS.21/2005 of SUB COURT, TIRUR .................... PETITIONER(S): --------------- MOHAMMED YOONUS,AGED 40 YEARS, S/O BEERANKUTTY,PATTATHIL HOUSE,CHERIYAMUNDAM AMSOM,P.O.THALAKAYATHUR,TIRUR-3. BY ADV. SRI.BOBY MATHEW RESPONDENT(S): --------------- 1. K.NOUSHAD,S/O ZAINUDEEN,KIZHAKENIKATH HOUSE,P.O.KERALA ESHARA PURAM,KERALA ESHARA PURAM AMSOM,DESOM,TANUR,MALAPPURAM. 2. GIREESH,S/O.CHEMBASSERI ARUMUGHAM, TRILEKANIYUR AMSOM,MUTHOOR DESOM, TIRUR TALUK. ADV. SRI.K.T.SHYAMKUMAR FOR R1 SRI.HARISH R. MENON FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.5745/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE COMPROMISE PETITION - IA 1408/2008 IN OS 21/2005 ON THE FILE OF THE COURT OF SUBORDINATE JUDGE, TIRUR EXT.P2 TRUE COPY OF THE DECREE DATED 8.7.2008 PASSED BY THE COURT SUBORDINATE JUDGE, TIRUR INOS 21/2005 EXT.P3 TRUE COPY OF EXECUTION APPLICATION DATED 30.1.2009 - EP NO.19/2009 IN OS 21/2005 EXT.P4 TRUE COPY OF SALE PROCLAMATION DATED 29.01.2010 IN EP NO.19/2009 IN OS 21/2005 ON THE FILE OF THE COURT OF SUBORDINATE JUDGE, TIRUR //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.5745 of 2010 -------------------------------------- Dated this the 7th day of June, 2010. JUDGMENT Petitioner is judgment debtor in E.P.No.19 of 2009 in O.S.No.21 of 2005 of the court of learned Sub Judge, Tirur. Execution was launched pursuant to Ext.P2, compromise decree for payment of Rs.13 lakhs with interest as stated therein. In the course of execution, property of petitioner was attempted to be sold. Ext.P4 is the sale proclamation where the amount due under the decree is stated as Rs.14,32,209/- and the upset price of the property was fixed as Rs.15 lakhs. Petitioner, challenging Ext.P4 filed this Writ Petition on 22.02.2010 and prayed for stay of all proceedings pursuant to Ext.P4 including conduct and confirmation of the sale. Writ Petition came up for hearing on 22.02.2010 at 1.45 p.m. and an order of interim stay was passed on condition that petitioner deposited Rs.4,00,000/- in the executing court within one week. Learned counsel states that the said condition has been complied with. In the meantime, property was sold on 22.02.2010 at 1.45 p.m. pursuant to Ext.P4. Now request of the learned counsel is to permit petitioner pay balance amount due under the decree in installments. Learned counsel for respondent No.1 would contend that the suit is of the year 2005 and until deposit of Rs.4,00,000/-as per conditional order passed by this Court no single pie has been paid by the petitioner. According to the learned counsel, there is no reason to interfere with Ext.P4, order. WP(C) No.5745/2010 2 2. So far as Ext.P4, order is concerned, it is seen that upset price of the property has been fixed as Rs.15 lakhs while the amount due as on the date of Ext.P4 was Rs.14,32,209/-. It is not shown that the upset price fixed for the property is low. As such no interference is required with Ext.P4. 3. But I am inclined to consider the request of petitioner to pay amount in installments. It is not disputed that Rs.4,00,000/- (Rupees four lakhs only) has already been deposited by petitioner in the executing court pursuant to the order passed by this Court. I stated that the conditional order of stay was issued by this Court on 22.02.2010 at 1.45 p.m. and obviously not knowing about the conditional order of stay passed by this Court the executing court has sold property on same day and time but concededly sale was conduced on 22.02.2010 and hence it was subject to the result of the Writ Petition. Having regard to the facts and circumstances I am inclined to grant time to the petitioner to deposit the balance amount due under the decree and direct that on deposit of the amount, the sale of property pursuant to Ext.P4 would stand set aside. Resultantly this Writ Petition is disposed of in the following lines: i. Petitioner shall pay Rs.8,00,000/- (Rupees eight lakhs only) towards amount due under the decree in four equal monthly installments beginning from 01.07.2010. WP(C) No.5745/2010 3 ii. Petitioner shall pay the entire balance amount (after deposit of the amount as per clause (i)) on or before 01.12.2010. iii. On payment of entire amount due under the decree as aforesaid, sale conducted pursuant to Ext.P4 will stand set aside. iv. In case of non-payment of entire balance amount as aforesaid or, there is any two defaults in payment of the installments, Writ Petition will stand dismissed in confirmation of sale pursuant to Ext.P4. THOMAS P.JOSEPH, Judge. cks