IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 OP(C).No. 183 of 2011(O) ------------------------ AGAINST THE ORDER IN EP 21/09, EA 297/10 IN OS.18/2005 of MUNSIFF COURT, QUILANDY .................... PETITIONER ------------------------------ MADHAVAN NAMBOODIRI, AGED 57 YEARS, S/O. P.M.MADHAVAN NAMBOODIRI, THIRUMANGALATH ILLATH, EDAKKARA AMSOM, KOLAKKAD DESOM, KOYILANDY TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SMT.ANJU P.NAIR RESPONDENT(S): --------------- SURESH, AGED 43 YEARS, S/O. KRISHNAN NAIR, KALLORATH HOUSE, THALAKKULATHUR AMSOM & DESOM, KOZHIKODE TALUK-673 001. ADV. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 183 of 2011(O) PETITIONER'S EXTS: EXT.P1: COPY OF EP 21/2009 IN OS NO.18/2005 DTD.2.1.2009 EXT.P2: COPY OF ORDER IN EP NO.21/2009 IN OS NO.18/2005 EXT.P3: COPY OF DRAFT SALE PROCLAMATION FILED BY RESPONDENT EXT.P4:- COPY OF EA NO.297/2010 IN EP NO.21/2009 IN OS NO.18/2005 EXT.P5:- COPY OF THE ORDER DTD.14.12.2010 IN EA NO.297/2010 IN EP NO.21/2009 IN OS 18/2005 OF MUNSIFF COURT, KOYILANDY. RESPONDENT'S EXTS: NIL /TRUE COPY/ P.A.TO JUDGE K.T.SANKARAN, J. ------------------------------ O.P(C)No.183 OF 2011 ------------------------------ Dated this the 10th day of June, 2011 JUDGMENT The petitioner is the judgment debtor in O.S.No.18 of 2005 on the file of the Munsiff Court, Koyilandy. The suit was decreed on 29.9.2008 for realisation of a sum of Rs.85,850/- with interest. E.P.No.21 of 2009 was filed for realisation of a total sum of Rs.1,37,367/- by attachment and sale of the immovable property belonging to the petitioner. An extent of 1.32 acres of land belonging to the petitioner was attached. By the order dated 6th July, 2010, the Executing Court directed sale of an extent of 50 cents out of 1.32 acres. This order was passed based on the objection raised by the petitioner that it is not necessary to sell the entire extent of the land for realisation of the decree debt. 2. Thereafter, the petitioner filed E.A.No.297 of 2010 to O.P(C)No.183 OF 2011 2 confine the attachment to the extent of 50 cents and to lift the attachment so far as the balance extent is concerned. The court below dismissed E.A.No.297 of 2010 by the order dated 14th December, 2010, which is under challenge in this Original Petition. 3. The court below held that the attachment cannot be lifted since the decree holder would be put to prejudice if the entire decree amount is not realised by the sale of an extent of 50 cents. The reasons stated by the court below are legal and proper. It cannot be assumed that the entire decree amount would be realised by the sale of 50 cents of land. If the decree amount is not fetched by the sale of 50 cents and in the meanwhile, the attachment is lifted in respect of the balance extent, the decree holder would be put to great prejudice. The order passed by the court below is legal, proper and just. No interference is called for, invoking the jurisdiction under Article 227 of the Constitution of India. The Original Petition is, accordingly, dismissed. O.P(C)No.183 OF 2011 3 4. The learned counsel for the petitioner submitted that in compliance with the interim order, a sum of Rs.40,000/- was deposited by the petitioner. It is submitted that the petitioner is making earnest efforts to raise funds and to pay the entire decree amount. The counsel submitted that three months' time may be granted to the petitioner to pay the entire balance decree amount. The learned counsel for the decree holder submitted that if the request is genuine, the decree holder has no objection in granting time. He added that sufficient safeguards may be provided to ensure that the petitioner pays the decree amount. In the peculiar facts and circumstances of the case, the following directions are issued: a) The petitioner is granted three months' time to pay off all the entire balance decree amount in instalments in the manner indicated below. O.P(C)No.183 OF 2011 4 b) The petitioner shall deposit before the Executing Court for payment to the decree holder a sum of Rs.25,000/- on or before 11.7.2011 and another sum of Rs.25,000/- on or before 11.8.2011. The entire balance decree amount shall be paid on or before 20th September, 2011. c) If the petitioner commits default in payment of any of the instalments mentioned above, the entire balance decree amount would be payable and the Executing Court shall proceed with the sale on the same proclamation. The petitioner waives fresh proclamation. K.T.SANKARAN, JUDGE. cms