XAVIER MICHAEL Vs. MATHAI VARGHESE

JUDGEMENT

(1.) JUDGMENT debtor in E.P. No.148 of 2010 in O.S. No.273 of 2008 of the court of learned Munsiff, Ernakulam is the petitioner before me. He filed the suit for injunction against forcible eviction claiming to be in possession of the suit property as a mortgagee under an unregistered agreement dated 16.08.2007 and claiming to have paid Rupees Five lakhs to the respondent. He apprehended that respondent might forcibly evict him from the suit property and filed the suit. Respondent-defendant filed written statement and counter claim denying that there was any such mortgage and contending that petitioner was permitted to occupy the building in the suit property on 01.06.2006 on payment of rent of `.4,500/- per month and that the said licence expired on 30.04.2007. Respondent sought eviction of petitioner. Learned Munsiff dismissed the suit and allowed the counter claim. Challenging that judgment and decree, petitioner has preferred A.S. No.206 of 2010. Since there was delay in filing the appeal by 126 days petitioner filed Ext.P3, application to condone the delay. That application now stands posted on 17.01.2011 for appearance of respondent. In the meantime executing court has ordered delivery of property and posted the execution petition on 19.01.2011 to report delivery. Petitioner apprehends that if even before Ext.P3, application to condone the delay in filing A.S. No.206 of 2010 and application filed in that appeal for stay of execution are considered delivery is effected, he might be thrown out from the property. Learned counsel contends that even if the agreement is an unregistered one and could not create a mortgage as claimed by petitioner, trial court was not correct in not making use of the said document for collateral purposes, to prove the claim of petitioner that he advanced Rupees Five lakhs to the respondent.

(2.) HAVING regard to the facts and circumstances of the case I am persuaded to think that petitioner could be granted some time since his application to condone the delay in filing the appeal is coming up for appearance of respondent on 17.01.2011, but subject to conditions: Resultantly, Original Petition is disposed of in the following lines: Executing court is directed to keep delivery proceeding in E.P. No.148 of 2010 in O.S. No.273 of 2008 in abeyance till 29.01.2011 or till learned District Judge disposed of Ext.P3, application whichever is earlier subject to the condition that petitioner produced Bank Guarantee in the executing court on or before 15.01.2011 for the entire amount due as on this day as per the decree under challenge.