Allowed

Sainath Enterprises v. the Catholic Syrian Bank Limited

Kerala HC24 Jun 2016OP(C)/1269/2016

Case brief

AI extract

What is this about?

The High Court disposed of an original civil petition challenging a proclamation of sale in an execution proceeding on contended nullity and low upset price. The court granted the petitioner six months to pay the decree amount in instalments, revocable upon default.

What did the court decide?

Petitioner granted six months to pay decree amount in six equal monthly instalments starting 01.08.2016.

Sainath Enterprises Vs the Catholic Syrian Bank… — Execution and Attachment | Kerala HC (2016)

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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.HARILAL

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FRIDAY, THE 24TH DAY OF JUNE 2016/3RD ASHADHA, 1938

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OP(C).No. 1269 of 2016 ()

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E.P. NO.363/2015 IN OS. NO.444/2013 OF MUNSIFF COURT, KANNUR.

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PETITIONER (DEFENDANT NO.1 IN THE SUIT AND THE JUDGMENT DEBTOR NO.1 IN THE EXECUTION PETITION):

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SAINATH ENTERPRISES, PROP. NARAYANAN K., S/O. KRISHNAN, AGED 43 YEARS, AP61/B, MAIN ROAD, P.O. AZHEEKKAL, KANNUR DISTRICT-670 009.

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BY ADV. SMT.SADHANA KUMARI ESWARI.

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RESPONDENTS (PLAINTIFF/DECREE HOLDER AND DEFENDANT NO.2/ JUDGMENT DEBTOR NO.2 IN THE EXECUTIVE PETITION):

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1. THE CATHOLIC SYRIAN BANK LIMITED, AZHIKODE BRANCH, KANNUR DISTRICT-670 009, REPRESENTED BY ITS MANAGER.

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2. PREETHA. D., W/O. NARAYANAN, AGED 40 YEARS, 'DAYARANKANDI HOUSE', NEAR CHAL BEACH, P.O. AZHEEKODE, KANNUR DISTRICT-670 009.

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R1 BY ADV. SRI.C.A.JOY.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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OP(C).No. 1269 of 2016 ()

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1 COPY OF THE EXECUTION PETITION.

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EXT.P2 COPY OF THE OBJECTION FILED BY THE DEFENDANTS. EXT.P3 IMPUGNED ORDER DATED 16/03/2016.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

K.HARILAL, J.

O.P.(C). No.1269 of 2016

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Dated this the 24^th day of June, 2016

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JUDGMENT

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The petitioner is the judgment debtor in E.P. No.363/15 in O.S. No.444/13 on the files of the Munsiff's Court, Kannur. The above E.P. was filed for realising an amount of Rs.3,27,384/- with 6% interest. The Execution Court proceeded to execute the decree under Order XXI Rule 11, 54, 64 and 66 of the Code of Civil Procedure against the immovable property of the petitioner. The petitioner contended that the ex parte decree, which is sought to be executed is a nullity as the summons was not duly served to him. That apart, the upset price fixed by the court below is very low and lesser than the actual market value of the property. According to him, the sale of 10.68 cents is not required to realise the decree amount. After considering the said objection, the court below rejected the objection and issued proclamation of

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OP(C).1269/16 :2:

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sale. This order is under challenge in this original petition.

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

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Going by the materials on record, it is seen that even though the petitioner has contended that the upset price fixed by the Execution Court is less than the actual market value of the property, no attempt was made to substantiate the said contention before the Execution Court. In the absence of any other material contrary to the contention raised by the petitioner, the court below fixed the upset price on the basis of the materials available on record. Therefore, I cannot find fault with the court below and there is no reason to interfere with the settlement of proclamation. Similarly, the executability of the decree cannot be considered in an execution petition, since such an enquiry goes behind the decree. Needless to say, the scope and extent of consideration under

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OP(C).1269/16 :3:

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Section 47 of the C.P.C. are confined to execution, discharge or satisfaction only.

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The learned counsel, at last, sought for some time to pay the decree amount, by way of instalments. The learned counsel for the respondent submits that a reasonable time alone can be given to pay the decree debt.

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Having regard to the said submission, the petitioner is given six months' time to pay the decree amount by six equal monthly instalments, payable before the 10^th of every month starting from 01.08.2016. In the event of failure to pay any of the instalments in time, this instalment facility will stand automatically revoked and the Execution Court shall proceed with the execution petition to realise the entire amount in lump sum. On compliance of the said condition, further proceedings in the execution petition shall be kept in abeyance, till 10^th day of sixth month. But, the Execution Court shall post the execution petition on

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OP(C).1269/16 :4:

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any day in between the 10^th and the 15^th of every month so as to ascertain the payment of instalments.

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This original petition is disposed of accordingly.

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Sd/-

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K. HARILAL, JUDGE

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okb.24/6

Sainath Enterprises v. the Catholic Syrian Bank Limited

Case brief

What is this about?

What did the court decide?

Sainath Enterprises v. the Catholic Syrian Bank Limited

Case brief

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What did the court decide?

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