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2022 Supreme(Online)(KER) 13227
HIGH COURT OF KERALA
C.S. DIAS, J
K.D RAPHY
– Appellant
Versus
SUNNY – Respondent
OP(C) 2498 2022
K.I.SAGEER, MUHAMMED YASIL
The court clarified that a petitioner must follow the correct procedural path to seek extensions related to decrees, emphasizing adherence to previously established court orders.
Headnote:
Execution - Petition Dismissal - Acts List: None - The court upheld the lower court’s decision, finding no illegality in dismissing the petitioner’s request for an extension of time to pay the decree debt, emphasizing adherence to previous court rulings.
Fact of the Case:
The petitioner, a judgment debtor, sought to set aside an order dismissing his application for time extension to pay a decree debt. He failed to meet the payments as per a previous court order allowing instalments due to financial difficulties.
Issues: Whether the lower court's order to dismiss the petitioner's request for extension of time was lawful and justified.
Ratio Decidendi: The court emphasized that the original petition was not maintainable because the proper procedure required seeking an extension of time in the prior ongoing case rather than filing a new petition.
Final Decision: The original petition is dismissed.
J U D G M E N T
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 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 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 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.
