Remanded

Subramanian v. Gopalakrishnan

Kerala HC4 Jul 2016OP(C)/1467/2016

Case brief

AI extract

What is this about?

In an original petition, the High Court held that the execution court's draft sale proclamation failed to comply with statutory requirements under Order XXI Rule 66 CPC due to omission of property value and upset price. The court set aside the proclamation and remitted the matter for a fresh drawal.

What did the court decide?

Ext.P9 sale proclamation is set aside and the matter is remitted to the Execution Court to draw a fresh proclamation strictly in accordance with the law.

Subramanian Vs Gopalakrishnan — 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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MONDAY, THE 4TH DAY OF JULY 2016/13TH ASHADHA, 1938

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OP(C).No. 1467 of 2016 (O)

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--------------------------EA 602/2016 IN E.P. 438/2014 IN OS 1010/2010 OF SECOND ADDITIONAL SUB COURT, THRISSUR

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PETITIONER(S):

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SUBRAMANIAN,S/O AVASSERY KESAVAN, VARAVOOR VILLAGE & DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT.

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BY ADVS.SRI.K.V.VISWANATHAN (WADAKANCHERI) SMT.E.S.SANDHYA

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RESPONDENT(S):

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GOPALAKRISHNAN,

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S/O KALLIVALAPPIL LAKSHMIKUTTY AMMA, VARVOOR VILLAGE & DESOM, THALAPPILLY TALUK, NOW RESIDING AT "AISWARYA", WADAKKANCHERI VILLAGE & DESOM,THALAPPILLY TALUK,THRISSUR DISTRICT.680582.

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BY ADV. SRI.SANTHEEP ANKARATH

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04-07-2016,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 1467 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1: TRUE COPY OF	THE DECREE IN O.S NO 1010/2010
EXHIBIT P2: TRUE COPY OF O.S 1010/2010	EXECUTION PETITION NO 438/2014 IN FILED BY THE RESPONDENT.
EXHIBIT P3: TRUE COPY OF FILED BY THE O.S 1010/2010	THE DRAFT SALE PROCLAMATION RESPONDENT IN E.P 438/2014 IN
EXHIBIT P4: TRUE COPY OF ON DRAFT SALE	OBJECTION FILED BY THE PETITIONER PROCLAMATION.
EXHIBIT P5: TRUE COPY OF	THE ORDER DRAFT SALE PROCLAMATION
EXHIBIT P6: TRUE COPY OF NO 602/2016 F E.P 438/2014	THE REVIEW PETITION E.A ILED BY PETITIONER IN
EXHIBIT P7: TRUE COPY OF RESPONDENT IN	THE OBJECTION FILED BY THE E.A 602/2016
EXHIBIT P8: TRUE COPY OF	THE ORDER IN E.A 602/2016
EXHIBIT P9: TRUE COPY OF	SALE PROCLAMATION.

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RESPONDENT(S)' EXHIBITS : NIL

//TRUE COPY//

P.A. TO JUDGE

K. HARILAL, J.

= = = = = = = = = = = = = = = = = O.P.(C) No. 1467 of 2016

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- - - - - - -- - - - - - - - - - - - - - Dated this the 4th day of July, 2016

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J U D G M E N T

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The petitioner is the Judgment Debtor, in

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Execution Petition No.438 of 2014 in Original Suit No.1010 of 2010, on the files of the Second Additional Sub Court, Thrissur and the respondent herein is the Decree Holder therein. The Execution Petition is for realisation of money by selling properties belonging to the petitioner.

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The grievance of the petitioner in this Original Petition(Civil) is that the proclamation of sale has not been drawn in accordance with the statutory requirement under Order XXI, Rule 66 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the C.P.C.). Even though, there is a terrace house, situated in the landed property worth

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`48,00,000/-, the value of the house is not included

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O.P.(C) No. 1467 of 2016

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-: 2 :-

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in the draft proclamation. So also, the upset price

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suggested by the petitioner is not incorporated in the draft proclamation. Thus, Ext.P9 proclamation under Order XXI, Rule 66 of the C.P.C. is under challenge in this Original Petition (Civil).

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Heard the learned counsel for the

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petitioner and the learned counsel appearing for the respondent.

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4. Apparently and manifestly, Ext.P9 sale

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proclamation drawn under Order XXI, Rule 66 of the C.P.C., does not satisfy the statutory requirements, which are enumerated under Sections 2(a) to 2(e) of Order XXI, Rule 66 of the C.P.C. The specific case of the petitioner is that there is a building worth `48,00,000/-in the said property. The value of the said property has not been included in Ext.P9 sale proclamation. It is also contended that sale of 11 cents of property is not required to satisfy the

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O.P.(C) No. 1467 of 2016

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-: 3 :-

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decree debt, which would come around `9,01,371/-.

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Having regard to the material irregularity

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in the proclamation drawn by the court below, this Court is inclined to set aside Ext.P9 and the matter is remitted to the Execution Court for fresh proclamation in accordance with law. Consequently, Ext.P9 is set aside and the Execution Court is directed to draw a fresh proclamation, strictly in accordance with the statutory requirements under Order XXI Rule 66 of the C.P.C.

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This Original Petition (Civil) is disposed of accordingly.

Sd/- K. HARILAL,

JUDGE

DST

//True copy//

P.A. To Judge

Subramanian v. Gopalakrishnan

Case brief

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Subramanian v. Gopalakrishnan

Case brief

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What did the court decide?

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