IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 WP(C).No. 4867 of 2009(D) ------------------------- AGAINST THE ORDER IN EP 89/1999 IN OS.333/1996 of SUB COURT,KOTTARAKKARA .................... PETITIONER(S): --------------- ANIL KUMAR, PARANKIMAMVILA VEEDU, PUTHENTHURA WARD, EZHUKONE. BY ADV. SRI.B.KRISHNA MANI SRI.MAHESH ANANDAKUTTAN RESPONDENT(S): --------------- KUTTAPPAN, CHAKKAIL VEEDU, CHERIYIL, ULIKKOVIL, KOLLAM. ADV. SRI.ALEXANDER GEORGE FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 4867/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF A DESIGN. EXT.P2: COPY OF THE REPORT IN OS NO.333/1996 IN EP NO.89/1999 BEFORE THE SUB COURT, KOTTARAKKARA. EXT.P3: COPY OF THE CERTIFICATE DATED NIL. EXT.P4: COPY OF THE E.A.NO.160/08 IN E.P.NO.89/1999 IN OS NO.333/1996 BEFORE THE SUB COURT, KOTTARAKKARA DATED 4.9.2008. EXT.P5: COPY OF THE ORDER IN EA NO.164/08 IN EP NO.89/1999 IN OS NO.333/96 BEFORE the SUB COURT, KOTTARAKKARA DATED 17.9.2008. EXT.P6: COPY OF THE MEMO DATED 20.11.2008 IN EP NO.89/1999 IN OS NO.333/1996 BEFORE THE SUB COURT, KOTTARAKKARA. EXT.P7: COPY OF THE JUDGMENT DATED 17.12.2008 IN WPC NO.33562/2008 BEFORE THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM. EXT.P8: COPY OF THE MEMO DATED 17.1.2009 IN EP NO.89/1999 IN OS NO.333/1996 BEFORE THE SUB COURT, KOTTARAKKARA. EXT.P9: COPY OF THE ORDER DATED 17.1.2009 IN EP NO.89/1999 IN OS NO.333/1996 BEFORE THE SUB COURT, KOTTARAKKARA. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.4867 of 2009 --------------------------------------------- Dated this the 11th day of March, 2009 JUDGMENT The petitioner is the judgment debtor in O.S.No.333 of 1996 on the file of the Sub Court, Kottarakkara. The suit was filed for realisation of money. In execution of the decree, the immovable property belonging to the petitioner was sold. The proceedings in execution were challenged by the petitioner in Writ Petition No.33562 of 2008 which was disposed of as per Ext.P7 judgment dated 17th December 2008. The petitioner was directed to pay a sum of Rs.50,000/- on or before 15th January 2009 and to pay the balance decree amount in monthly instalments of Rs.30,000/- each. It was held that if the instalments are paid regularly, the execution proceedings will be kept in abeyance. In case of failure to pay the first instalment of Rs.50,000/- or any of the two consecutive subsequent instalments, the execution proceedings were directed to be proceeded with. Actually, by the time Ext.P7 judgment was passed, the sale was already over on 17.9.2008. According to WPC No.4867/2009 2 the petitioner, Rs.50,000/- was paid by him on 15.1.2009 evidenced by Ext.P8 receipt. The petitioner says that he produced the receipt before the executing court. However, the executing court passed Ext.P9 order dated 17th January 2009 confirming the sale. The execution petition was accordingly closed. Ext.P9 is under challenge in this Writ Petition. 2. The learned counsel for the decree holder submitted that the decree holder received Rs.50,000/- within the stipulated time, namely, 15.1.2009. Since the sale was confirmed on 17.1.2009, the Writ Petitioner cannot be blamed for not depositing the subsequent monthly instalments, as it was quite unnecessary. 3. Since the first instalment was paid within time, and there being no default as on that day, the court below was not justified in confirming the sale on 17.1.2009. Therefore, Ext.P9 order dated 17.1.2009 is set aside. 3. Now the question is how the intalments payable as per Ext.P7 judgment are to be paid. The petitioner cannot be faulted for not paying the instalments payable on 15.2.2009. The next instalment of Rs.30,000/- falls due on 15.3.2009. Taking WPC No.4867/2009 3 into account the facts and circumstances of the case, there will be a direction to the petitioner to pay Rs.60,000/- on or before 31.3.2009. The balance instalments shall be paid as per the schedule of payment fixed in Ext.P7 judgment. If the petitioner fails to pay Rs.60,000/- on or before 31.3.2009, the executing court can proceed with the proceedings. The Writ Petition is disposed of as above. K.T.SANKARAN, JUDGE csl