IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 FAO.No. 32 of 2009() -------------------- AGAINST THE ORDER DATED 23/08/2007 IN EA 136/07,EP 39/02 IN OS.188/1993 of ADDL.SUB COURT, ALAPPUZHA .................... APPELLANT ----------------------------- DOMINIC, AGED 61 YEARS, S/O.WASTINE KALATHIL VEEDU, OMANAPUZHA WARD, ALAPPUZHA. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT(S): --------------- 1. CENTRAL BANK OF INDIA, ALAPPUZHA REPRESENTED BY ITS MANAGER. 2. MUHAMMED SADIC, S/O. HOWDER AREEPURATH HOUSE, KAKKAZHAM MURI AMBALAPUZHA VILLAGE, ALAPPUZHA. ADV. SRI.R.AZAD BABU FOR R1 SMT.DEEPTHI AZAD FOR R1 SRI.S.SANAL KUMAR FOR R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 31/07/2009, ALONG WITH FAO NO. 231 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO 231/08 & 32/09 -------------------------------------------------------- Dated 31st July 2009 Judgment RAMAN, J. FAO No.32/09 This is an appeal against an order dismissing a petition to set aside the ex parte order against the petitioner, passed in EA No.136/07 in EP 39/02 in OS 188/93. The appellant is the judgment debtor. The suit is one for realisation of the amount due to the bank. Eventually, a decree was passed and when it was put in execution, the property of the petitioner was put to sale and purchased by the respondent. The purchaser had deposited the entire sale consideration and the decree holder withdrew the amount and the decree was satisfied. Now the dispute is only between the judgment debtor on the one hand and the auction purchaser respondent. The appellant filed a petition under Order XXI Rule 90 CPC to set aside the sale. The court below, after analysing the material on record, came to the conclusion that the grounds highlighted are only evasive. It is to FAO 231/08 & 32/09 2 be noticed that according to the appellant, the Advocate of the appellant was engaged in another court and though the case was represented, the IA happened to be dismissed. The court below found that the defendant failed to adduce believable and reliable evidence to allow the prayer. It was noted that the grounds urged lack bona fides. 2. Except an ipse dixit of the appellant, no other materials were adduced. There was no evidence available to support the contentions urged by him. We do not find any merit in the contentions raised in the appeal. However, it is submitted that the only property of the appellant is the property in question and the appellant agreed that the entire auction amount with interest will be paid off and pleaded for taking a lenient view. The learned counsel appearing for the respondents submitted that in case the entire amount is paid within a reasonable time limit fixed by this court, they may not have serious objections and at the same time contended that the appellant had been trying to drag on the matter without settling the same. Having heard both sides, we find that liberty can be given to the appellant to deposit FAO 231/08 & 32/09 3 the entire amount found payable to the auction purchaser. With this view, we directed the appellant to deposit an amount of Rs.2 lakhs and the same has been deposited before this court. An amount of Rs.27,000/- is stated to be lying in deposit before the court below. Thus, an amount of Rs.2,27,000/- is now available to be adjusted against the claim of the auction purchaser. On a rough calculation, an amount of Rs.1,90,000/- will be due and payable if the interest is calculated @ 9%. For paying the balance amount of Rs.1,90,000/- the appellant's counsel seeks six months' time, which is seriously opposed by the respondents. However, considering the fact that substantial amount has been deposited by the appellant and thereby, he has proved his bona fides, we direct that the balance amount of Rs.1,90,000/- shall be deposited in two instalments. The first instalment will fall due on or before 1st November 2009 and thereafter, on 1st of February 2010. If the amount is deposited as aforesaid, the sale will stand set aside. In case the appellant commits default in payment of either of the instalments, then, he will lose the benefit of the order and the sale will stand confirmed and the FAO 231/08 & 32/09 4 court will proceed to deliver the property to the respondents. 3. The 2nd respondent is directed to withdraw Rs.2 lakhs before this court as also an amount of Rs.27,000/- now lying with the court below subject to the condition that in case the appeal stands dismissed because of the default from the part of the appellant to pay the amount then the said amount withdrawn be redeposited. FAO 231/08 This is an appeal against the order dismissing the case for default on non-appearance. Subsequently, petition to set aside the ex parte order was filed and arising out of that, FAO 32/09 was filed and disposed of as above. Hence this appeal is only to be dismissed. Accordingly this appeal is dismissed. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 231/08 & 32/09 5 FAO 231/08 & 32/09 6