IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 OP(C).No. 1975 of 2011(O) ------------------------- ARC.684/2008 OF SUB COURT, TIRUR .................... PETITIONER (S): -------------------- PALLIVALAPPIL PANKAJAM, D/O. ARAMUGHAN, P.O. KURUMBATHUR, KURUMBATHUR AMSOM DESAM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.A.KRISHNAN RESPONDENT(S): ---------------------- 1. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), TIRUR - 676 101. 2. THE SECRETARY, PARAPPANANGADI REGIONAL HOUSING CO-OPERATIVE SOCIETY LTD. NO. (M) 38, P.O. PARAPPANANGADI - 676 303 ADV. SRI.V.RAJENDRAN FOR R2 SMT.A.S.BEENU FOR R2 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 1975/2011 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE SALE CERTIFICATE ISSUED BY THE FIRST RESPONDENT DATED 27.2.2010. EXT.P2: COPY OF THE EXECUTION PETITION DATED 30.11.2010 FILED BEFORE THE HON'BLE SUB COURT, TIRUR VIDE NO.18 OF 2011 IN ARC NO.684 OF 2008. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. -------------------------------------- O.P.(C).No.1975 of 2011 --------------------------------------- Dated this the 1st day of July, 2011 JUDGMENT The petitioner availed a housing loan from the Parappanangadi Regional Housing Co-operative Society Ltd. No.(M)38, Parappanangadi. The second respondent initiated proceedings for recovery of the amount as the loan was not repaid. An award was passed by the first respondent against the petitioner for realisation of amounts. Execution Petition was filed before the first respondent. The property belonging to the petitioner was sold in auction on 18.4.2009 and the property was purchased by the second respondent. Sale was confirmed on 27.2.2010 and the sale certificate was issued to the second respondent. 2. The second respondent filed E.P.No.18 of 2011 before the Sub Court, Tirur for delivery of the property. The property is directed to be delivered on 4.7.2011. In the Original Petition, the prayer made by the petitioner is to grant permission to him to pay the debt in 15 equal monthly O.P.(C) No.1975/2011 2 instalments and to defer delivery of the property till then. 3. The learned counsel for the second respondent submitted that the reliefs prayed for in the Original Petition are not maintainable. The sale having been held and the second respondent having purchased the property in court auction, the only remedy available to the petitioner was to file an application to set aside the sale. He did not file any application to set aside the sale. The counsel submitted that as the sale was confirmed and the sale certificate was issued in favour of the second respondent, at this juncture, there is no question of any payment by instalments towards the decree debt. Even if the amount is paid, that would not confer title of the property on the petitioner nor would it divest the rights of the second respondent. 4. However, on getting specific instructions from the second respondent, the learned counsel submitted that the second respondent is not very much interested in keeping the property and if the full amount payable as on today is paid, the second respondent is prepared to re-convey the property to the O.P.(C) No.1975/2011 3 petitioner. The counsel also submitted that the liability as on today, if worked out on the basis of the decree, would be ` 3,38,575/-. 5. The learned counsel for the petitioner submitted that the petitioner requires six months' time to pay off the entire liability. The petitioner is prepared to pay ` 3,38,575/- and also interest up to the date of payment as per the agreed rate. 6. The learned counsel for the second respondent submitted that the second respondent has no objection for granting six months' time, provided the full amount together with interest at the agreed rate up to the date of payment is paid to the second respondent. It is also submitted that symbolic delivery of the property can be directed to be given to the second respondent. 7. The petitioner is residing with family in the house situated in the property which was sold in court auction. The loan was taken as a housing loan. If the petitioner loses his residential O.P.(C) No.1975/2011 4 building and property, he would be put to great hardship. The second respondent is agreeable to re-convey the property if the petitioner pays the entire dues as aforesaid within a period of six months. However, symbolic delivery of the property can be given to the second respondent, without disturbing the possession of the petitioner and his family members. In the facts and circumstances of the case, the Original Petition is disposed of as follows: (i) If the petitioner pays a sum of ` 3,38,575/- and interest at the agreed rate till the date of payment, within a period of six months from today to the second respondent, the second respondent shall re-convey the property to the petitioner at the expense of the petitioner. (ii) The second respondent will be entitled to get symbolic delivery of the property, without disturbing the possession of the petitioner and his family members in O.P.(C) No.1975/2011 5 the property in question. (iii) If the petitioner commits default in payment of the amount as mentioned above within the aforesaid period of six months, the executing court shall effect delivery and secure actual possession of the property to the second respondent. (iv) The execution proceedings shall be kept pending, after effecting symbolic delivery, for a period of six months to facilitate the payment as aforesaid and for the purpose of effecting actual delivery to the second respondent. (v) It is made clear that this order will not preclude the second respondent from granting any benefit of one time settlement or any other claim which is available to the creditors, provided, the petitioner complies with all the requirements under law. It is also made clear that this clarification would not confer any right on the O.P.(C) No.1975/2011 6 petitioner to claim as of right any benefit other than the benefit which may be granted by the second respondent. K.T.SANKARAN JUDGE csl