Kerala High Court
Othayoth Arif vs Ramlath T on 19 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942
FAO.No.11 OF 2021
AGAINST THE ORDER DATED 05-11-2020 IN EA NO.599/2020 IN EP
NO.68/2019 IN OS 53/2017 OF I ADDITIONAL SUB COURT,
KOZHIKODE.
APPELLANT/PETITIONER/JUDGMENT DEBTOR :
OTHAYOTH ARIF, S/O. YOOSAF KOYA,
AGED 48 YEARS, KAKKOTHIPARAMBIL (H),
WESTHILL P. O., KOZHIKODE.
BY ADVS.
SRI.M.PROMODH KUMAR
SMT.MAYA CHANDRAN.
RESPONDENT/RESPONDENT/DECREE HOLDER :
RAMLATH T, W/O. USMAN KOYA,
AGED 43 YEARS, THOTTUNGAL (H),
P. O. WESTHILL, KOZHIKODE.
BY ADV. SRI.ELDHO PAUL.
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD
ON 19.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
F.A.O No.11 of 2021 2
A.HARIPRASAD & P.V.KUNHIKRISHNAN, J J.
--------------------------------------
F.A.O No.11 of 2021
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Dated this the 19th day of February, 2021
JUDGMENT
A.Hariprasad, J
Heard the learned counsel for the appellant and respondent.
2. An order passed by the First Additional Sub Judge, Kozhikode
in E.A No.599 of 2020 in E.P No.68 of 2019 arising out of O.S No.53 of
2017 is under challenge. Appellant is the judgment debtor in the above
suit. The suit was one for specific performance, which was settled in a
mediation. The appellant agreed that he will return the advance amount
received from the respondent. Since that amount was not paid within the
time agreed to between the parties, the respondent filed an execution
petition for executing the compromise decree. The property belonging to
the appellant was put to sale. It was sold in auction and with the leave of
the court, the respondent/decree holder purchased the property. Thereafter,
the appellant paid the entire amount to the decree holder/respondent and
the parties have settled the matter. When the appellant approached the
court below to set aside the sale after the period of sixty days prescribed in
Article 127 of the Limitation Act, the court below dismissed the application
finding that the application is time barred and the sale had already been
confirmed.
3. Learned counsel for the appellant submitted that the
confirmation of sale was during the period in which Covid pandemic
struck the entire country. Appellant relied on a direction issued by the
Supreme Court in Suo Moto Writ Petition (Civil) No.3 of 2020 extending
the period of limitation in respect of the pending matters.
4. Having regard to the factual situation, we are of the view that
the benefit of the direction by the Supreme Court should be extended to the
appellant too, especially when the parties have amicably settled the issue.
In the result, we allow the appeal setting aside the order dated
05-11-2020 passed by the First Additional Sub Judge, Kozhikode in E.A
No.599 of 2020 in E.P No.68 of 2019 arising out of O.S No.53 of 2017. We
hereby set aside the sale.
The court below shall issue necessary communication to the
Sub Registry concerned indicating the factum of setting aside the sale.
All pending interlocutory applications will stand closed.
A. HARIPRASAD,
JUDGE.
P.V.KUNHIKRISHNAN,
JUDGE
amk
APPENDIX
PETITIONER'S EXHIBITS :
ANNEXURE 1 THE CERTIFIED COPY OF THE JOINT
STATEMENT EXECUTED BY THE APPELLANT AND
THE RESPONDENT.
ANNEXURE 2 THE CERTIFIED COPY OF THE ORDER IN EA
NO.643/2020.
ANNEXURE 3 TRUE COPY OF THE ORDER IN EA
NO.683/2020 DATED 22.12.2020.
RESPONDENT'S EXHIBITS : NIL.
