IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 RSA.NO. 435 OF 2009() --------------------------------- AS.4/2007 OF DISTRICT COURT, WAYANAD-KALPETTA OS.53/2008 OF SUB COURT, SULTHAN BATHERY .................... APPELLANTS – APPELLANTS – DEFENDANT: ------------------------------------------------------------- 1. P.T.THIMMAYYAN, S/O. THAMMANNAN, MAKRAMKOTTU KANDIYIL HOUSE, THONDERNADU AMSOM DESOM, MANATHAVADY TALUK. 2. M.G.SUKUMARIAMMA, W/O. THIMMAYYAN, MKRAMKLOTTU KANDIYIL HOUSE, THONDERNADU AMSOM DESOM, MANANTHAVADY TALUK. BY ADV. SRI.S.M.PRASANTH RESPONDENT(S) – RESPONDENT – PLAINTIFF: --------------------------------------------------------------- KELOTH ANIYERI PADMANBHAN, S/O. KUNHAPPU, VADAKARA AMSOM DESOM, VADAKARA TALUK, KOZHIKKODE DIST. ADV. SRI.NIRMAL. S FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.435 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of December, 2009 J U D G M E N T ---------------------- Second Appeal arising from judgment and decree of learned District Judge, Wayand-Kalpetta in A.S.No.4 of 2007 was admitted by this Court as per order dated 6.7.2009. 2. Respondent filed O.S. No.53 of 1999 for realisation of money advanced to the appellants as per an agreement for sale. A decree was granted in favour of the respondent, ex parte. 311 days after the ex parte decree, there was an application to set aside the ex parte decree with an application to condone delay in filing the application for setting aside the ex parte decree. Learned Sub Judge was not inclined to accept the same and accordingly both the applications were dismissed. Civil Miscellaneous Appeal arising therefrom was also dismissed. In the meantime appellants challenged the original decree in the court of learned District Judge, Wayand- Kalpatta in A.S. No.4 of 2007 with an application to condone the delay. Learned District Judge dismissed that application and consequently the appeal also against which this Second Appeal is preferred. Now parties have settled the dispute between them and filed I.A. No.2862 of 2009 reporting settlement and seeking a modified decree in terms R.S.A. NO.435 of 2009 -: 2 :- of the compromise. 3. During the pendency of the appeal before the learned District Judge obviously as there was no stay of execution of the decree respondent proceeded with execution of decree of the trial court and in that proceeding property of appellants was sold in auction. It was purchased by the respondent. A sale certificate was issued in favour of the respondent. Now as per the terms of the settlement vide I.A. No.2862 of 2009 appellants have to pay Rs.2,75,000/- to the respondent. Appellants have also no objection in respondent withdrawing the sum of Rs.10,000/- they have deposited in this Court as per order dated 6.7.2009. Thus a total sum of Rs.2,85,000/- is payable to the respondent. At the same time it is requested that the sale of the property in auction and the certificate issued in favour of the respondent pursuant to the execution of the decree of trial court be set aside. Respondent has no objection for the said course. Accordingly this Second Appeal is disposed of in terms of the compromise in the following lines: (i) Compromise filed vide I.A. No.2862 of 2009 is recorded and a decree is passed in terms of that compromise. R.S.A. NO.435 of 2009 -: 3 :- (ii) Consequently, judgment and decree passed by the courts below and the proceedings in E.P. No.59 of 2004 in O.S.No.53 of 1999 of the court of learned Sub Judge, Sulthan Bathery are set aside. Sale certificate issued to respondent will also stand set aside. (iii) Learned counsel for appellants acknowledges receipt of the sale certificate referred to in clause (ii) above which respondent has today handed over to the learned counsel for the appellants. (iv) The D.D. No.143146 for Rs.10,000/- (Rupees Ten thousand only) of State Bank of India, High Court Branch dated 10.7.2009 and D.D. No.178501 for Rs.2,75,000/- (Rupees Two lakhs and seventy five thousand only) of State Bank of India, High Court Branch dated 18.11.2009 kept in the safe custody of Registrar General of this Court shall be released to the counsel for respondent forthwith on filing memo to that effect. (v) Compromise shall form part of the decree of this Court. R.S.A. NO.435 of 2009 -: 4 :- Refund one half of the court fee paid on the memorandum of appeal to the counsel for appellants as provided under law. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.435 of 2009 -: 5 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.435 OF 2009 =================== J U D G M E N T 10TH DECEMBER, 2009