Quashed

K.P.Sreekumar v. Antony Joseph Kavalan

Kerala HC16 Jun 2008WP(C)/10497/2008

Case brief

AI extract

What is this about?

In an execution petition for realization of a money decree, the petitioner challenged the Sub Judge's suo motu order recalling the commission warrant and directing proclamation and sale of 52 cents of property valued over Rs. 5 lakhs. The High Court found the order lacked valid reasons for bypassing required survey and subdivision, thus quashing it.

What did the court decide?

Ext.P5 order quashed; Sub Judge directed to pass appropriate order in E.P.No.193/1989.

K.P.Sreekumar Vs Antony Joseph Kavalan — Execution and Attachment | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR

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MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930

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WP(C).No. 10497 of 2008(Y)

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-------------------------AGAINST THE ORDER DATED / / IN EP 193/1989 IN OS.212/1987 of PRINCIPAL SUB COURT,KOLLAM

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PETITIONER:

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K.P. SREEKUMAR KANNAMPALLY VALIYATH VEETTIL AYANIVELIKULANGARA VILLAGE.

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BY ADV. SRI.B.KRISHNA MANI SMT.M.R.ANUPAMA

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RESPONDENTS:

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ANTONY JOSEPH KAVALAN THE MANAGER OF SYNDICATE BANK KAAMKULAM BRANCH AND ALSO POWER OF ATTORNEY HOLDER.

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BY ADV. SRI.R.S.KALKURA FOR R1

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX IN W.P.(C) No.10497 of 2008

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EXT.P1 TRUE COPY OF THE DECREE DATED 30.11.1988 IN O.S.No.212/1987 BEFORE THE SUB COURT, KOLLAM.

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EXT.P2 TRUE COPY OF THE SCHEDULE OF PROPERTIES DATED 12.1.2007

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EXT.P3 TRUE COPY OF THE OBJECTION TO THE DRAFT PROCLAMATION DATED 27.2.2007 IN EP.NO.193/1989 IN O.S.NO.212/1987 BEFORE THE SUB COURT KOLLAM.

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EXT.P4 TRUE COPY OF THE APPLICATION DATED 22.2.2008 IN E.P.NO.193/1989 IN O.S.NO.212/1989 BEFORE THE SUB COURT, KOLLAM.

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EXT.P5 TRUE COPY OF THE ORDER DATED 26.2.2008 IN E.P.NO.193/1989 IN O.S.NO.212/1987 BEFORE THE SUB COURT, KOLLAM.

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EXT.P6 TRUE COPY OF THE APPLICATION DATED 18.3.2008 IN E.P.NO.193/1989 IN O.S.NO.212/1987 BEFORE THE SUB COURT, KOLLAM.

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//TRUE COPY//

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P.S. TO JUDGE.

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M.SASIDHARAN NAMBIAR, J.

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W.P.(C) No.10497 of 2008

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Dated this the 16^th June, 2008.

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J U D G M E N T

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3^rd judgment debtor in O.S.No.212/1987 on the file of the Sub Court, Kollam, is the petitioner. Respondent is the decree holder. For realisation of the amount due under the money decree, E.P.No.193/1989 was filed by the respondent before the Sub Court, Kollam. Petitioner is challenging Ext.P5 order whereunder learned

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Sub Judge suo motu reviewed the earlier order and directed proclamation and sale of the property sought to be sold.

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The learned counsel appearing for the petitioner and respondent were heard. Ext.P5 order does not show any valid reason to review the earlier order suo motu. Ext.P1 decree provides for sale of the decree scheduled properties for realisation of decree debt of Rs.2,87,137.61 with interest and cost. Ext.P5 order shows that a Commissioner was originally appointed to prepare a plan with the assistance of Taluk Surveyor and the Commissioner l surrendered the commission warrant stating that Taluk Surveyor is not co-operating.

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W.P.(C) No.10497/2008

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Learned Sub Judge, for the reason that it is one of the oldest Execution Petition, and the amount to be realised is more than Rs.5 lakhs and the properties sought to be sold is 52 cents, recalled the commission warrant for the reason that “ I found no need to survey and sub-divide the property as requested by the judgment debtor. Hence the earlier order passed in E.A.No.613/2007 stands reviewed suo motu” . Ext.P5 order does not show that Sub Judge directed proclamation and sale before the Commissioner completing the work for the reason that decree is a mortgage decree and for that reason integrity of the mortgage cannot be split up by directing sale of the property into different plots. Order does not reveal for what reason the executing court found that report of the Commissioner or the survey of the property is not necessary so as to recall the earlier order and that too suo motu. In such circumstances, Ext.P5 order is quashed. Sub Judge is directed to pass appropriate order in E.P.No.193/1989 in accordance with law.

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M.SASIDHARAN NAMBIAR,

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JUDGE

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nj.

K.P.Sreekumar v. Antony Joseph Kavalan

Case brief

What is this about?

What did the court decide?

K.P.Sreekumar v. Antony Joseph Kavalan

Case brief

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What did the court decide?

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