Disposed

Samuel, S/O.Yohannan v. Art Leasing Limited

Kerala HC4 Apr 2012OP(C)/1263/2012

Case brief

AI extract

What is this about?

The petition was filed by a judgment debtor challenging the execution proceedings where property was scheduled for auction. The court ruled that it is not necessary for it to decide the substantive contentions on sufficiency of sale portion, directing the executing Sub Judge to decide the petitioner's application before the auction sale is conducted.

What did the court decide?

Directed the learning Sub Judge, Pathanamthitta to decide the petitioner's application (E.A.No.250 of 2012) regarding sufficiency of sale of property before conducting the auction.

Samuel, S/O.Yohannan Vs Art Leasing Limited — Execution and Attachment | Kerala HC (2012)

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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 THOMAS P.JOSEPH

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WEDNESDAY, THE 4TH DAY OF APRIL 2012/15TH CHAITHRA 1934

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OP(C).NO. 1263 OF 2012 (O)

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EP.50/2010 OF SUB COURT, PATHANAMTHITTA IN OS.21/2009 OF SUB COURT, CHENGANNUR

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PETITIONER(S):

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SAMUEL, S/O.YOHANNAN, AGED 75 YEARS, PLAVINAL VEEDU, ULANAD P.O., KULANADA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.

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BY ADVS.SRI.K.SHAJ SRI.SAJJU.S

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RESPONDENT(S):

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ART LEASING LIMITED, ART CHAMBERS, 1^ST FLOOR, GOVT. HOSPITAL JUNCTION, M.C. ROAD, CHENGANNUR, ALAPPUZHA DISTRICT - 688 009.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P(C)NO.1263 OF 2012

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE EXTRACT OF THE GOVERNMENT GAZETTE FAIR PRICE NOTIFICATION IN RESPECT OF THE PROPERTY OF THE PETITIONER.

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EXHIBIT P2 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER IN E.P. NO.50 OF 2010 OF THE SUB COURT, PATHANAMTHITTA IN O.S. NO.21 OF 2009 OF SUB COURT, CHENGANNUR.

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RESPONDENT(S)' EXHIBITS: NIL

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TRUE COPY

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P.S. TO JUDGE

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THOMAS P. JOSEPH, J.

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-------------------------------------O.P.(C). No.1263 of 2012 -------------------------------------Dated this the 4^th day of April, 2012. JUDGMENT

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Notice to the respondent is dispensed with in view of the manner in which I propose to dispose of this original petition.

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This original petition is filed by the judgment debtor in E.P.No.50 of 2010 of the Sub Court, Pathanamthitta where a decree obtained by respondent in O.S.No.21 of 2009 of the Sub Court, Chengannur is being executed and as learned counsel submits, more than 6,68,000/- is due to the respondent. Learned counsel submits that 33 Ares belonging to the petitioner was attached but the sale proclamation was approved for sale of 15 Ares and that property is being brought up for sale on 07.04.2012. According to the petitioner, as per the fair value fixed by the State Government (Ext.P1) value per Are is 5,00,000/and hence sale of 2 Ares is sufficient to satisfy the decree in favour of respondent. Petitioner has filed Ext.P2 – E.A.No.250 of 2012 requesting the executing court to consider whether sale of 2 Ares is sufficient to satisfy the decree debt and in the meantime, defer the proposed auction sale on 07.04.2012.

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Learned counsel contends that under Rule 64 of Order XXI of the Code of Civil Procedure (for short, “the Code”) there is a statutory duty cast on the executing court to decide whether sale of a portion of the property alone is sufficient to satisfy the decree and that the jurisdiction of the executing court is to

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sell only that much of the property required to satisfy the decree. It is also contended by THE learned counsel that non-compliance with Rule 64 of Order XXI of the Code is a material irregularity which vitiates the sale.

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It is not necessary for me to go into the above contentions. It is for the executing court to decide the contentions raised by petitioner in Ext.P2, application – E.A.No.250 of 2012. If such an application is preferred and not disposed of by the executing court, certainly it has to be disposed of before auction sale is conducted.

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Resultantly this Original Petition is disposed of directing the learned Sub Judge, Pathanamthitta where the decree in O.S.No.21 of 2009 of the Sub Court, Chengannur is being executed vide E.P.No.50 of 2010 to dispose of Ext.P2, application (E.A.No.250 of 2012) if it is filed in that court and not already disposed of, before auction sale is conducted.

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THOMAS P.JOSEPH, Judge.

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cks

Samuel, S/O.Yohannan v. Art Leasing Limited

Case brief

What is this about?

What did the court decide?

Samuel, S/O.Yohannan v. Art Leasing Limited

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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