JUDGMENT

Ajithkumar, J.

The petitioner is the 2nd respondent in Rent Control Petition No.8 of 2009 before the Rent Control Court (Munsiff), Koyilandy. That petition was filed by respondent No.1 herein for eviction under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court ordered eviction finding that the rent at the rate of Rs.500/- from July, 2006 has been in arrears and that the 2nd respondent herein was the tenant. The petitioner and 2nd respondent are spouses, but in loggerheads. The petitioner preferred an appeal, R.C.A.No.138 of 2012, under Section 18(1)(b) of the Act. The Rent Control Appellate Authority (Additional District Judge-IV), Kozhikode as per the judgment dated 12.02.2014 upheld the said order, but with a modification that the petitioner is a co-tenant. She failed to deposit the arrears of rent within the time stipulated. The Rent Control Court dismissed the interlocutory applications for condonation of delay and to vacate the order of eviction filed by the petitioner as per Exts.P3 and P4 orders. Those orders were challenged by the petitioner by filing R.C.A.Nos.152 and 153 of 2015. The Appellate Authority as per Ext.P5 common judgment dated 19.01.2017 allowed the appeals and reversed Exts.P3 and P4 orders on the condition of deposit of entire arrears of rent, within a period of one month from the date of receipt of a copy of that judgment. The petitioner filed I.A.No.111 of 2017 before the execution court seeking to condone the lapse occurred in depositing the balance amount of arrears of rent. The execution court on finding that the entire arrears of rent was not deposited on time, ordered delivery in E.P.No.93 of 2015 in R.C.P.No.8 of 2009. E.A.No.111 of 2017 was dismissed as well. It is the said order that is under challenge in this original petition filed under Article 227 of the Constitution of India.

2. On 28.07.2017, the original petition was admitted.

The Village Officer, Chemmencherry was directed to submit a report as to whether the petition schedule building is in existence or not. A report was accordingly submitted by the Village Officer stating that the building is in existence, but its structure has been partially damaged.

3. Heard the learned counsel for the petitioner and also the learned counsel for the respondent.

4. As per the common judgment in R.C.A.Nos.152 and

153 of 2015, Ext.P5, the Appellate Authority allowed I.A.Nos.666 and 667 of 2014 filed by the petitioner in R.C.P.No. 8 of 2009 on the condition of deposit of the entire arrears of rent till the date of that judgment along with interest at the rate of 6%, within one month from the date of receipt of a copy of that judgment. The petitioner should have deposited or paid the rent till January, 2017 in obedience to Ext. P5 judgment within the time thereby stipulated.

5. The case of the petitioner is that she had remitted the entire arrears of rent and filed E.A.No.111 of 2017 for condoning the lapse in making payment of entire amount on time. Ext.P8 is the objection filed by the 1st respondent in the said petition. She took up a contention that the entire arrears of rent due till January, 2017 was not deposited and therefore delivery was liable to be effected. A statement of accounts showing the amount remained due towards arrears of rent was also filed, which is Ext.P6. It is seen that an affidavit was thereafter filed by the petitioner before the execution court stating that Rs.4,880/- was remitted by her on the bonafide belief that the same was the actual amount due towards arrears of rent. She further averred that on seeing Ext.P6 statement of accounts only, she realised that Rs.15,136/- more was due towards rent till January, 2017. Therefore she remitted an amount of Rs.17,256/- towards the balance arrears of rent together with its interest. It is the case of the petitioner that by such payment, she paid entire rent upto May, 2017, and hence, the execution court ought not to have ordered