IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 OP(C).No. 1203 of 2011(O) ------------------------- OS.157/2001 of SUB COURT,KATTAPPANA .................... PETITIONERS/JUDGMENT DEBTOR ----------------------------------------------- 1. GIJI, W/O.LATE TOMY, AGED 31 YEARS, RESIDING AT THOTTUVAYIL HOUSE, IDUKKI KAVALA KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK. 2. CHRISTINA MARIA TOM (MINOR AGED 7 YEARS) D/O.LATE TOMY, RESIDING AT THOTTUVAYIL HOUSE, IDUKKI KAVALA KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK REPRESENTED BY NATURAL GUARDIAN (MOTHER) IST PETITIONER. BY ADV. SRI.C.K.PAVITHRAN SRI.M.VIVEK RESPONDENT(S): DECREE HOLDERS ----------------------------- 1. P.T.THOMAS, S/O.THOMACHAN, AGED 51 YEARS, RESIDING AT KARUTHEDATHU PUTHENPURAYIL HOUSE, KARIMKUNNAM KARA, KARIMKUNNAM VILLAGE, THODUPUZHA TALUK-685 586. 2. SANOJ, S/O.A.K.CHACKO, (AGE NOT KNOWN TO THE PETITIONER), RESIDING AT AMBALATHARA HOUSE, NARAKAKANAM P.O., THANKAMANI VILLAGE, IDUKKI DISTRICT-685 602. BY ADV.SHRI.A SHAFEEQ THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- OP(C) No.1203 of 2011 ------------------------------------- Dated this the 25th day of March 2011 Judgment In this petition under Article 227 of the Constitution of India, the following reliefs are sought for : i. issue a writ of mandamus or any other appropriate writ, direction, or order calling for the records leading to Exts.P6 and P7 and set aside Exts.P6 and P7 and direct the learned Sub Judge to consider Ext.P5 objection and pass appropriate orders. ii. Direct the learned Sub Judge to permit the petitioners to discharge the decree debt in monthly instalments ; and iii.grant such other reliefs this Honourable court deems fit and proper in the circumstances of the case including cost of this proceedings. 2. The first petitioner suffered a decree in OS No.157/01 before the Sub Court, Kattappana for a sum of Rs.2,01,150/-. She did not pay the decree amount and so, EP was taken out. It is stated in the petition that the matter OPC 1203/11 2 was referred to the Adalat and there was an agreement to pay the decree debt within an year. The EP was closed on that basis. The first petitioner did not pay the amount as agreed upon by her in the agreement and therefore, the EP was revived and proceedings were initiated to recover the decree debt from her. Now, the petitioner says that her property is brought to sale for recovering the decree debt. She filed a petition before the court below stating that she is willing to deposit Rs.50,000/- immediately and the balance, in monthly instalments, to avoid sale. The court below felt that it is only a delaying tactic and therefore, dismissed the petition. The said order is assailed in this petition. 3. The learned counsel points out that the first petitioner is only a Nursing Assistant and she is getting only a meagre salary. It is also submitted that she undertakes to pay Rs.50,000/- immediately and the balance decree debt in ten equal monthly instalments. OPC 1203/11 3 4. The learned counsel for the respondents vehemently opposed the said request on the ground that in the Adalat, the matter was settled as per an agreement wherein the first respondent decree holder had given up the interest portion and only insisted for the principal amount and even that amount has not been paid by the first petitioner. Therefore, it was pointed out that the request of the first petitioner may not be accepted. 5. Of course, the fact remains that the petitioner is a defaulter on earlier occasions. But, considering the nature of the case and also the fact that her house is being brought to sale, it is felt that some leniency is to be shown to the petitioner and the request made by her can be sympathetically considered. In the result, this petition is allowed and the first petitioner is directed to deposit Rs.50,000/- within one week from today and pay the balance decree amount in monthly instalments of Rs.10,000/- (Rupees Ten Thousand only). The first instalment shall be paid on or before 5th May OPC 1203/11 4 2011 and the remaining instalments on or before the 5th of every month. If the first petitioner defaults payment of any two consecutive instalments, the respondents will be at liberty to bring the property of the first petitioner to sale and recover the entire balance decree debt. P.Bhavadasan, Judge sta OPC 1203/11 5