Ex.FA.No.69 of 2012

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 3RD DAY OF MARCH 2016/13TH PHALGUNA, 1937** ## **Ex.FA.No. 69 of 2012 ()** **-----------------------AGAINST THE ORDER IN EA 82/2012 IN EP 238/2009 IN OS 267/2007 of PRINCIPAL SUB COURT, ERNAKULAM DATED 16-10-2012** ## **APPELLANTS/PETITIONERS/JUDGMENT DEBTORS:** **--------------------------------------------------------------------------** **1. SADANANDA SHENOY (DIED), KANHIAYA, XL/7026, M.G ROAD, ERNAKULAM, KOCHI - 682 035.** ## **2. MRS.REMA BAI,** **W/O.LATE SADANANDA SHENOY, KANHIAYA, XL/7026, M.G ROAD, ERNAKULAM, KOCHI - 682 035.** **3. MR.REGHU SHENOY, S/O.SADANANDA SHENOY, KANHIAYA, XL/7026, M.G ROAD, ERNAKULAM, KOCHI - 682 035.** **4. MS.JAYASREE, D/O.LATE SADANANDA SHENOY, KANHIAYA, XL/7026, M.G ROAD, ERNAKULAM, KOCHI - 682 035.** **BY ADVS.SRI.C.J.JOY SMT.VALSAMMA KURIAN JOSE** **RESPONDENTS/DECREE HOLDER & AUCTION PURCHASER:** **----------------------------------------------------------------------------------------** **1. JOSEPH JERRY, AGED 54 YEARS,** **S/O.JOHN, KOCHERRY HOUSE, FORT KOCHI P.O, KOCHI - 682 001.** **2. SREEKESH SHENOY, CHOICE HOME, GOPALA PRABHU ROAD, M.G. ROAD JUNCTION, ERNAKULAM - 682 035.** **R1 BY ADVS. SMT.PRABHA R.MENON SRI.R.MANOJ SRI.JEEMON K.ABRAHAM R2 BY ADVS. SRI.R.PRASANTH KUMAR SRI.ASWIN G.PRABHU** **THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON 03-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Ex.F.A.No.69 of 2012** ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** **ANNEXURE A1: TRUE COPY OF THE DISTRICT LEVEL PURCHASE COMMITTEE (DPLC) DATED 24/8/2012 UNDER THE CHAIRMANSHIP OF THE DISTRICT COLLECTOR, ERNAKULAM TO DECIDE THE PRICE TO BE OFFERED FOR THE LANDS PROPOSED TO BE ACQUIRED IN CONNECTION WITH THE DEVELOPMENT OF M.G. ROAD, BANERJI ROAD AND RAILWAY STATION ROAD INCLUDED IN THE PREPARATORY WORK FOR THE KOCHI METRO RAILWAY.** ## **RESPONDENTS' ANNEXURES: NIL** ## **/TRUE COPY/** ## **P.A. TO JUDGE** ## **VPV** ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Ex.F.A.No.69 of 2012** ## **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 3[rd] day of March, 2016** ## **JUDGMENT** ## _**P.N.Ravindran, J.**_ Appellants 2 to 4 are the legal heirs of the judgment debtor in O.S.No.267 of 2007 on the file of the Court of the Subordinate Judge of Ernakulam, a suit instituted by the first respondent herein for specific performance of Ext.A3 agreement dated 22.12.2006 for sale of 1.984 cents of land together with the building therein for a total sale consideration of Rs.35,00,000/-. He had in the alternative prayed for return of the sum of Rs.22,00,000/- which was paid as advance together with interest. Late Sadananda Shenoy, the husband of the second appellant and father of appellants 3 and 4 was the sole defendant in the suit. The first respondent/plaintiff gave up his claim for specific performance and sought only a decree for return of the advance paid by him together with interest. Accepting his contentions, the trial court decreed the suit by judgment delivered on 29.8.2010 allowing the first respondent/plaintiff to realise the sum of Rs.22,00,000/- with future interest at 6% per annum as also costs of the suit. ## **Ex.F.A.No.69 of 2012** ## **-:2:-** 2. When the decree debt was not satisfied, the plaintiff filed E.P.No.238 of 2009 on 22.5.2009 for realisation of the sum of Rs.27,21,976.44 with future interest. In the execution petition, he had prayed that the subject matter of the agreement for sale may be brought to sale and sold for realisation of the decree debt. Even before the execution petition was filed, the judgment debtor had passed away and therefore, the decree was sought to be executed against appellants 2, 3 and 4 herein who, as stated earlier, are the wife, son and daughter respectively of the judgment debtor. After notice to them and after they filed their objections, the sale proclamation was settled on 29.6.2011 fixing the upset price as Rs.19,95,000/- based on the valuation certificate issued by the Tahsildar, Kanayannur Taluk. Though the decree holder had filed E.A.No.911 of 2011 in E.P.No.238 of 2009 under Order XXI Rule 72 of the Code of Civil Procedure for permission to bid and set off and it was allowed by order passed on 1.8.2011 and he participated in the sale, the auction was knocked down in favour of the second respondent, the highest bidder who had quoted the sum of Rs.24,01,000/-. He deposited 1/4[th] of the said sum namely Rs.6,00,250/- on 4.1.2012 itself and the balance sum of Rs.18,00,750/- on 18.1.2012. Three days later, to be exact on 21.1.2012, the appellants herein filed E.A.No.82 of 2012 under Order XXI Rule 90 read with section 151 of the Code of Civil Procedure to ## **Ex.F.A.No.69 of 2012** ## **-:3:-** have the sale held on 4.1.2012 set aside. After considering the rival contentions, the execution court dismissed the application to set aside the sale by order passed on 16.10.2012. The said order is under challenge in this appeal which was presented on 5.11.2012. 3. By reason of the interim orders passed in the instant appeal, disbursement of the sale price deposited in full by the second respondent auction purchaser has not been effected and the money is even today lying in deposit. After this appeal was posted for hearing, pursuant to the orders passed by this court, the parties appeared and mediation talks were held. Though mediation talks were not successful, after interaction and discussions with the parties and with the active participation of the learned counsel for the decree holder, the judgment debtors and the auction purchaser, an amicable settlement was arrived at. The parties have filed a joint compromise petition (I.A.No.782 of 2016) to which they have subscribed their signatures. Learned counsel appearing for the parties have also subscribed their signatures to the compromise petition. 4. The compromise petition discloses that the judgment debtors (the appellants) have agreed that the sale held on 4.1.2012 may be confirmed subject to the following conditions: - i. The auction purchaser/second respondent herein shall permit the judgment debtors (the appellants in this appeal - Smt.Rema Bai, ## **Ex.F.A.No.69 of 2012** ## **-:4:-** Sri.Reghu Shenoy and Kum.Jayasree) who are the wife and children of late Sadananda Shenoy to reside in the house situate in the property sold in action on 4.1.2012 for a further period of two months from today. - ii. The auction purchaser/second respondent (Sri.Sreekesh Shenoy, S/o.Keshava Shenoy) has agreed that he will arrange lifelong free food and accommodation for the judgment debtors at Dr. Narmada Dayananda Kamath Senior Citizens' Home, Kacherippady which is situate opposite Sree Sudheendra Medical Mission Hospital, Chittoor Road, Ernakulam. He has also undertaken that they will not be called upon to do any manual work at the said place of residence. - iii. The auction purchaser has also agreed and undertaken that he will forthwith pay in cash to the appellants, the sum of Rs.1,00,000/- (Rupees One Lakh only) and a further sum of Rs.1,00,000/- (Rupees One Lakh only) within a further period of one year from today. - iv. The parties have also agreed that the decree holder (the first respondent in this appeal) can withdraw the entire sum of Rs.24,01,000/- (Rupees Twenty Four Lakhs One Thousand only) deposited by the auction purchaser (the second respondent) subject to the condition that after such withdrawal, he shall pay ## **Ex.F.A.No.69 of 2012** ## **-:5:-** the sum of Rs.1,01,000/- (Rupees One Lakh One Thousand only) to the judgment debtors in cash. - v. The decree holder has also agreed that the appropriation of the sum of Rs.23,00,000/- (Rupees Twenty Three Lakhs only) from out of the sum of Rs.24,01,000/- (Rupees Twenty Four Lakhs One Thousand only) withdrawn by him shall be towards full and final satisfaction of the decree in O.S.No.267 of 2007 and that he will not have any further claim as against the judgment debtors or their assets. The judgment debtors have also agreed that they will have no other claims as against the decree holder or the auction purchaser except for amounts mentioned above. 5. After having given our anxious consideration to the pleadings and the materials on record and after interacting with the parties on more than three occasion, we are satisfied that the compromise entered into between the parties is bonafide and genuine and that having regard to the ground realities and the circumstances in which the judgment debtors are placed and the fast deteriorating health of the second judgment debtor and the decree holder, it is in the interests of all concerned that the compromise is accepted and acted upon. We accordingly accept the compromise entered into between the parties and dispose of the appeal in accordance with the terms thereof, ## **Ex.F.A.No.69 of 2012** ## **-:6:-** confirming the sale held on 4.1.2012 in execution of the decree passed by the Court of the Subordinate Judge of Ernakulam in O.S.No.267 of 2007. The execution court where E.P.No.238 of 2009 in O.S.No.267 of 2007 is pending, shall forthwith release the entire sum of Rs.24,01,000/- (Rupees Twenty Four Lakhs One Thousand only) deposited by the auction purchaser to the decree holder and on the day the said sum is disbursed, record full satisfaction of the decree and close the execution petition. The execution court shall thereupon confirm the sale held on 4.1.2012 and issue a sale certificate in compliance with the rules. It will be open to the auction purchaser to move the execution court for delivery after the expiry of the period of two months from today subject to production of proof of payment of the sum of Rs.1,00,000/- (Rupees One Lakh only) to the judgment debtors. Needless to say, in the event of the auction purchaser declining to pay the sum of Rs.1,00,000/- (Rupees One Lakh only) agreed upon to be paid within one month from today or the decree holder not paying the sum of Rs.1,01,000/- (Rupees One Lakh One Thousand only) in cash to the judgment debtors as agreed to between the parties, it will be open to the appellants to realise the said amount from them by filing an appropriate petition for execution by treating this judgment as a decree for the said sums in their favour. Having regard to the failing health of the second appellant and the ## **Ex.F.A.No.69 of 2012** ## **-:7:-** impecunious circumstances in which the appellants are placed, we also deem it appropriate to direct and accordingly direct that the sum of Rs.1,01,000/- (Rupees One Lakh One Thousand only) payable to hem by the decree holder shall be paid within two weeks from today. The appellants shall, on the auction purchaser and the decree holder paying the amounts payable by them in terms of the agreement, issue a duly stamped receipt signed by all three of them. In view of the compromise entered into between the parties and the directions contained in this judgment, the execution court shall forthwith release the sum of Rs.24,01,000/- (Rupees Twenty Four Lakhs One Thousand only) deposited by the auction purchaser to the decree holder. A copy of the compromise petition shall be appended to this judgment and the original thereof shall be preserved. The parties shall suffer their respective costs. Sd/- **P.N.RAVINDRAN JUDGE** Sd/- **K.RAMAKRISHNAN JUDGE** **vpv**