SUDEVAN Vs. SUNDARAN

JUDGEMENT

(1.) JUDGMENT debtor in E.P No.422 of 2009 in O.S. No.943 of 1998 of the court of learned Munsiff, Palakkad is the petitioner before me. With his mother as one of the defendants, his aunt filed O.S. No.943 of 1998 for partition of the suit properties alleging that said properties belonged to their parents and on their death it devolved on the mother of petitioner, his aunt and others. A final decree was passed and in the course of execution mother of petitioner died. Thereon petitioner and others were impleaded as her legal representatives in the execution petition. While so petitioner, disputing that properties belonged to his grand parents filed O.S.No.24 of 2007 for a declaration that the preliminary and final decrees in O.S. No.943 1998 are not binding on him or the properties and for consequential relief of injunction. He also filed O.S. No.150 of 2010 for partition of the properties in the way he claimed title. In the meantime the share allotted to the respective sharers in O.S. No.943 of 1998 has already been delivered over and the decree holder in that case is proceeding to recover the mesne profits against petitioner, and his share of the property is brought up for sale. I am told that property is scheduled to be sold on 18.10.2010. In the meantime petitioner filed Ext.P4, application in E.P. No.422 of 2009 for stay of further proceeding but that was dismissed by Ext.P5, order observing that attempt of petitioner is to protract the proceeding. That order was challenged in W.P(C) No.10753 of 2010. That Writ Petition was dismissed as per Ext.P6, judgment observing that executing court is justified in dismissing the application but directing the executing court to keep E.P. No.422 of 2009 pending till 08.04.2010. Now executing court has passed Ext.P9, order observing that there is no stay in the matter and hence property (share of petitioner) is to be proclaimed and sold (which I am told is to happen on 18.10.2010).

(2.) THOUGH various contentions are raised by petitioner as to the legality of executing court proceeding to sell the share of property of petitioner, I am not very much impressed by those contentions. I do not find anything irregular or illegal in the executing court proceeding with sale of share of property of petitioner. As a last minute attempt to save the property from sale learned counsel requested that petitioner may be granted one month's time to pay off the decree amount so that sale could be averted. Having regard to the facts and circumstances I am not inclined to grant that much time but I am inclined to grant two weeks' time from 18.10.2010 to deposit the amount due and avert the sale. Resultantly, Original Petition is dismissed. But petitioner is granted two weeks' time from 18.10.2010 to deposit the amount payable as per the decree in O.S. No.943 of 1998 subject to the condition that petitioner files affidavit in the executing court waiving fresh proclamation for sale (without prejudice to his contentions in O.S. No.24 of 2007 and O.S. No.150 of 2010) on or before 18.10.2010. In case the affidavit as aforesaid is not filed or the entire amount due under the decree is not deposited within two weeks from 18.10.2010 it will be open to the executing court to proceed with sale of the property.