Kerala High Court
K.D Raphy vs Sunny on 23 December, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 23RD DAY OF DECEMBER 2022 / 2ND POUSHA, 1944
OP(C) NO. 2498 OF 2022
EA 1073/2022 OF PRINCIPAL SUB COURT / COMMERCIAL COURT, THRISSUR
PETITIONER:
K.D RAPHY
AGED 60 YEARS
S/O KONNIKARA DEVASSY
KONNIKARA HOUSE, OLLU VILLAGE DESOM OLLUR P.O,
THRISSUR TALUK, THRISSUR-680306.
PIN - 680306
BY ADVS. K.I.SAGEER
MUHAMMED YASIL
RESPONDENT:
SUNNY
AGED 65 YEARS
S/O ANTONY, ARIMBOOR HOUSE,
KUTTANELLUR, THRISSUR-680014.
REPRESENTED BY POWER OF ATTORNEY HOLDER PIOUS
S/O ARIMBOOR ANTONY, KANJANI THRISSUR-680014.
PIN - 680014
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.12.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C)No.2498/2022
-:2:-
Dated this the 23rd day of December,2022
JUDGMENT
The original petition is filed to set aside Ext P5
order passed in E.A.No.1073/2022 in E.P.No.245/2013
in O.S.No.775/2010 by the Court of the Principal
Subordinate Judge, Thrissur.
2. The concise case of the petitioner, relevant
for the determination of the original petition, is: he is
the judgment debtor in the above execution petition
filed by the respondent to realise an amount of
Rs.2,75,000/- with future interest. The petitioner had
appeared before the court below and sought time to
pay off the decree debt in instalments. Due to the
precarious financial condition of the petitioner, he was
unable to pay the decree amount within the stipulated
O.P.(C)No.2498/2022
time period. Thereafter, this Court by Ext P4
judgment, permitted the petitioner to pay the decree
amount in equated monthly instalments. Still, for
reasons beyound his control, he could not comply with
the conditions in the said order. Consequently, the
petitioner filed E.A.No.1073/2022 before the court
below, seeking enlargement of time to pay the
instalments. The court below, by the impugned Ext P5
order, has dismissed the application. Ext P5 is
unreasonable and unjust. Hence, the original petition.
3. Heard; Sri. K.I. Sageer, the learned counsel
appearing for the petitioner and Sri. K.B. Gangesh, the
learned counsel appearing for the respondent.
4. The question is whether there is any illegality
in Ext.P5 order?.
5. The request of the petitioner in the execution
petition was to permit him to pay off the decree debt in
O.P.(C)No.2498/2022
equated monthly instalments. Thereafter, he
approached this Court and filed O.P.(C)No.2293/2021.
This Court, by Ext P4 judgment, directed the court
below to keep the execution petition in abeyance and
the petitioner to pay off the decree debt in eight
equated monthly instalments. The petitioner failed to
avail the benefit.
6. Undisputedly, the petitioner has not sought
for enlargement of time of Ext P4 judgment; instead he
moved the court below and sought for extension of
time.
7. The court below, by the impugned Ext P5
order, has rightly declined to interfere with the matter.
8. According to me, the original petition is not
maintainable, in view of Ext P4 judgment passed by
this Court. The proper course of the petitioner was to
move for enlargement of time in O.P.(C)No.2293/2021
O.P.(C)No.2498/2022
and not move the court below or this Court through the
present original petition. I dismiss the original petition
on the said sole ground. Nevertheless, Sri. K. B.
Gangesh, on instructions, submitted that the petitioner
has one more chance to pay off the entire decree debt
on or before 03.01.2023. The said submission is
recorded. It is upto the petitioner to avail the benefit
of the concession made.
With the above observation, the original petition is
dismissed.
Sd/-
C.S.DIAS,JUDGE
DST/23.12.22 //True copy/
P.A.To Judge
O.P.(C)No.2498/2022
APPENDIX
PETITIONER EXHIBITS
EXHIBIT-P1 A TRUE COPY OF THE DECREE DATED 09.03.2012
IN O.S NO.775/2010 ON THE FILES OF 2ND
ADDITIONAL SUB COURT THRISSUR
EXHIBIT-P2 A TRUE COPY OF THE PETITION IN E.P
NO.245/2013 IN O.S NO.775/2010 ON THE FILES
OF THE HON'BLE SUB COURT THRISSUR
EXHIBIT-P3 A TRUE COPY OF THE AUCTION NOTICE ISSUED BY
THE PRINCIPAL SUB COURT THRISSUR IN E.P
NO.245/2013 IN O.S NO.775/2010 DATED
01.11.2021
EXHIBIT-P4 A TRUE COPY OF THE JUDGMENT DATED
04.01.2022 IN O.P.(CIVIL) NO. 2293/2021 OF
THIS HON'BLE COURT
EXHIBIT-P5 A TRUE COPY OF THE ORDER DATED 22.10.2022
IN E.A NO.1073/2022 OF THE PRINCIPAL SUB
COURT-THRISSUR
RESPONDENT'S EXHIBIT: NIL
