IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 WP(C).No. 36580 of 2008(D) -------------------------- E.A.NO.616/2008 IN E.P.NO.421/2004 IN OS.105/2002 of II ADDL.M.C.,NEYYATTINKARA .................... PETITIONER(S): --------------- V.RAJASEKHARAN NAIR, SUMATHI BHAVAN, OLATHANI, KADAVAVATTARAN DESOM, NEYYATTINKARA VILLAGE. BY ADV. SRI.R.GOPAN RESPONDENT(S): --------------- N.SASIKUMARAN NAIR, VASANTHA NILAYAM, THATHIYOOR DESOM, PERUMKADAVILA VILLAGE. ADV. SRI.RAM MOHAN.G. FOR R SRI.G.P.SHINOD FOR R SRI.MANU V. FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.36580/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SALE PROCLAMATION DATED 10.4.2008 AND SCHEDULE OF PROPERTY ISSUED BY THE 2ND ADDITIONAL MUNSIFF, NEYYATTINKARA. EXT.P2: COPY OF THE REPORT DATED 21.5.2008 OF THE AMIN SUBMITTED BEFORE THE 2ND ADDITIONAL MUNSIFF, NEYYATTINKARA. EXT.P3: COPY OF THE E.A.NO.616/2008 DATED 21.7.2008 FILED BY THE PETITIONER BEFORE THE 2ND ADDITIONAL MUNSIFF, NEYYATTINKARA. EXT.P4: COPY OF THE OBJECTION FILED BY THE RESPONDENT IN E.A.NO.616/2008 DATED 23.7.2008. EXT.P5: COPY OF THE ORDER DATED 8.8.2008 IN E.A.NO.616/2008 IN E.P.NO.421/2004 IN O.S.NO.105/2002 OF THE 2ND ADDITIONAL MUNSIFF COURT, NEYYATTINKARA. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.36580 OF 2008 () ----------------------------------- Dated this the 5th day of January, 2010 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to issue an order and set aside Ext.P5 order. ii. to issue an order or direction to 1st Additional Munsiff Court, Neyyattinkara to consider Ext.P3 application on merit after giving an opportunity to the petitioner to adduce evidence to substantiate his contention. iii. to issue an order or direction to the 1st Additional Munsiff Neyyattinkara, permitting the petitioner to pay the entire decree debt on an instalment basis. 2. Petitioner is the judgment debtor in E.P.No.421 of 2004 in O.S.No.105 of 2002 on the file of the Munsiff Court, Neyyattinkara. The decree executed was one passed in a suit WPC.36580/08 2 for money. Five cents of property belonging to the petitioner/judgment debtor had been brought to sale to realise the decree debt. The respondent/decree holder in auction purchased that property. After sale, petitioner/judgment debtor moved an application under Order XXI Rule 90 of the Code of Civil Procedure alleging fraud and material irregularity in the sale. Ext.P3 is the copy of that application. When the petition was posted for enquiry, petitioner/judgment debtor was not present, consequently, it was dismissed vide Ext.P5 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Pursuant to the directions issued by this Court, petitioner/judgment debtor had deposited a sum of Rs.30,000/- before the execution court. The learned counsel for the petitioner/judgment debtor submits that he is prepared to pay whatever amount due to the respondent/decree holder, for the indulgence of this Court to set aside the sale, which, according to the counsel, takes in WPC.36580/08 3 part of his residential building as well. That is disputed by the respondent/decree holder. But, it is fairly conceded that the decree holder is interested only in getting the amount due under the decree, and approximately a sum of Rs.75,000/-, according to the counsel, is due to the decree holder. A sum of Rs.30,000/- has already been deposited by the petitioner/judgment debtor. In view of the submissions made by the counsel on both sides, petitioner/judgment debtor is extended an opportunity to deposit the balance sum of Rs.45,000/- before the execution court within a period of six weeks from the date of this judgment. In case, the amount fixed as above is deposited, the execution court shall pass appropriate orders for setting aside the sale and recording satisfaction of the decree. If deposit is not made within the time fixed, confirming the sale the court below to proceed with further steps to terminate the execution proceedings. Writ petition is accordingly closed. S.S.SATHEESACHANDRAN JUDGE prp