Allowed

T.P.Basheer & Another v. v.a.Aboobacker

Kerala HC16 Feb 2011OP(C)/195/2011

Case brief

AI extract

What is this about?

The High Court set aside an order directing the sale of two properties without considering the judgment debtor's objection to selling the entire extent. The Court held that the executing court is mandated to consider whether a portion of the property suffices for debt realization.

What did the court decide?

The order dated 30.11.2010 is set aside; the executing court must consider the objection before settlement of sale proclamation.

T.P.Basheer & Another Vs v.a.Aboobacker — Execution and Attachment | Kerala HC (2011)

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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 K.T.SANKARAN

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WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932

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OP(C).No. 195 of 2011(O)

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OS.207/2007 OF ADDL.SUB COURT,NORTH PARAVUR

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PETITIONERS: RESPONDENTS/JUDGMENT DEBTORS

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T.P.BASHEER, S/O.ALI, AGED 56, NASEEB HOUSE, HAMZA KUNJU LANE, S.R.M.ROAD, KOCHI-18.

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SALAM, S/O.KUNJAMU, AGED 52, MULAKKAPPILLY, PADAMUGAL KARA, KAKKANAD P.O., ERNAKULAM.

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BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ

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SRI.P.PRIJITH

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RESPONDENT: PETITIONER/DECREE HOLDER

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V.A.ABOOBACKER, S/O.ABDULKHADER HAJEE, AGED 35, VALANKOTTIL HOUSE, KAKKANADU, THRIKKAKARA P.O., PIN-682028.

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ADV. SRI.M.A.ABDUL HAKHIM

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SRI.M.G.ANON

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXT.P1 TRUE COPY OF EXECUTION PETITION NO.32/09 IN O.S.NO.207/2007 OF ADDITIONAL SUB COURT, PARAVUR.

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EXT.P2 TRUE COPY OF OBJECTION TO DRAFT SALE PROCLAMATION.

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EXT.P3 TRUE COPY OF ORDER DATED 30.11.2010 IN E.P.NO.32/09 IN O.S.NO.207/2007 OF ADDITIONAL SUB COURT, PARAVUR.

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EXT.P4 TRUE COPY OF KERALA GAZETTE NOTIFICATION DATED 6.3.2010.

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RESPONDENT'S EXHIBITS: NIL

//TRUE COPY//

AHZ/

K.T.SANKARAN, J.

-----------------------------------------------------O.P.(C). NO. 195 OF 2011 O

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-----------------------------------------------------Dated this the 16^th day of February, 2011

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JUDGMENT

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The petitioners are judgment debtors in E.P.No.32 of 2009 in O.S.No.207 of 2007, on the file of the Additional Sub Court, North Paravur. The respondent, decree holder, filed the Execution Petition for realization of a sum of 15,03,300/- by attachment and sale of plaint A and B schedule properties. The petitioner filed objection stating that item (1) in the draft proclamation schedule is worth 30 lakhs and item (2) is worth ` 18 lakhs. It is not necessary to sell the entire items for realization of the decree debt. The petitioner also raised a contention that it is sufficient if a portion of the property is sold. In the objection, it was also stated that the details of the improvements were not shown in the proclamation and the real value of the property was not shown.

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The court below passed an order dated 30.11.2010, which reads as follows:

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“Proclaim and sell on 17.1.2011 and call on 18.1.2011.”

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O.P.(C) NO.195 OF 2011

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:: 2 ::

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3. The Supreme Court held in Ambati Narasayya v. M.Subba

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Rao and another (AIR 1990 SC 119) that it is the duty of the Court to consider whether it is necessary to sell the entire extent of the property sought to be sold or whether it is sufficient if a portion of the property is sold for realization of the decree debt. The Supreme Court stated that it is a mandate of the legislature and it is not a discretion of the Court. The decision in Ambati Narasayya's case was followed in several other decisions of the Supreme Court and the Kerala High Court. In Desh Bandhu Gupta v. N.L.Anand & Rajinder Singh ((1994) 1 SCC 131), the Supreme Court held that the duty of the Court to consider the objection under Rule 66 of Order XXI of the Code of Civil Procedure is mandatory and that the executing court is bound to consider whether it is necessary to sell the entire extent of land for realization of the decree debt. In spite of the binding precedents, the executing court did not consider the objection raised by the judgment debtor at all and by a “single sentence order” two items of properties were ordered to be sold. The order is without jurisdiction and illegal.

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O.P.(C) NO.195 OF 2011

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:: 3 ::

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Accordingly, the order dated 30.11.2010 is set aside. The

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executing court shall consider the objection raised by the petitioner before settlement of sale proclamation. The court below shall pass a speaking order.

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It is stated that the judgment debtor has deposited Rupees One lakh as per the interim order. The decree holder is entitled to withdraw the same.

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The Original Petition is allowed as above.

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(K.T.SANKARAN) Judge

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ahz/

T.P.Basheer & Another v. v.a.Aboobacker

Case brief

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T.P.Basheer & Another v. v.a.Aboobacker

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