The High Court set aside the proclamation of sale in an execution petition due to defective service of notice and an inadequate upset price.
The proclamation of sale was set aside set aside in limine and the Execution Court was directed to ascertain due service of notice and determine the upset price afresh.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 15TH DAY OF JULY 2016/24TH ASHADHA, 1938
OP(C).No. 1558 of 2016 (O)
--------------------------E.P. NO.136/2015 IN ARC. NO.1133/2013 OF MUNSIFF COURT, CHERTHALA.
PETITIONER(S):
JOSEPH ANTONY, S/O. ANTONY, AGED 49 YEARS, MURIYANATTUTHARA HOUSE, MARARIKULAM NORTH, WARD NO.17, CHETHY POST, CHERTHALA, ALAPPUZHA DISTRICT, PIN CODE-688 530.
BY ADVS.SRI.R.PREMCHAND,
SMT.A.A.DILSHAH.
RESPONDENT(S):
THANKEY SERVICE CO-OPERATIVE BANK LTD., (NO.1003), THANKEY, KADAKKARAPILLY POST, CHERTHALA, ALAPPUZHA DISTRICT, PIN CODE-688 529, REPRESENTED BY ITS SECRETARY.
BY ADVS. SRI.V.G.ARUN, SRI.T.R.HARIKUMAR.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rs.
OP(C).No. 1558 of 2016 (O)
APPENDIX
PETITIONER'S EXHIBITS:-
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S. TO JUDGE
rs.
K. HARILAL, J.
= = = = = = = = = = = = = = = = = O.P.(C) No. 1558 of 2016
- - - - - - -- - - - - - - - - - - - - - Dated this the 15th day of July, 2016
J U D G M E N T
The petitioner is the Judgment Debtor in E.P.
No.136 of 2016 in A.R.C. No.1133 of 2013, on the files of the Munsiff's Court, Cherthala. The above Execution Petition was filed by the Decree Holder for recovery of money by sale of property scheduled in the Execution Petition.
Original Petition (Civil) that notice has not been duly served to him in the execution proceedings and the address shown in the Execution Petition is not his correct address. So also, the upset price fixed by the court below is very low and inadequate. To substantiate the above contentions, the petitioner has produced the copy of the proceedings in the
above Execution Petition and the copy of the sale
O.P.(C) No. 1558 of 2016
-: 2 :-
deed, by which the petitioner purchased the
property. Thus, the legality and propriety of the proceedings in the Execution Petition as well as the proclamation for sale are challenged in this Original Petition (Civil).
petitioner and the learned counsel appearing for the respondent.
notice was not duly served to him, the petitioner has produced the copy of the proceedings in the aforesaid Execution Petition. Going by the proceedings, it could be seen that the Execution Petition was posted for return of notice to Judgment Debtor Nos. 1 and 3 to 21.11.2015 and there was no sitting on that day and the case was adjourned to 04.01.2016. The proceedings further show that on 04.01.2016, Judgment Debtors appeared
O.P.(C) No. 1558 of 2016
-: 3 :-
and prayed for objection. Here, it is the case of
the petitioner that he has not filed vakalath in the Execution Petition as notice was not duly served to him. But, somebody made a misrepresentation before the court, seeking adjournment.
the Judgment Debtor No.1 has been duly served or not. Without making an appropriate endorsement as to due service of notice against Judgment Debtors, the court below went wrong by making an endorsement as to Judgment Debtors appeared and prayed for time. In short, the proceedings does not show that notice has been duly served to the petitioner.
price fixed for 30 cents of property is `1,00,000/only. Ext.P1 shows that the petitioner has purchased
O.P.(C) No. 1558 of 2016
-: 4 :-
15 cents of property for `1,50,000/- and Ext.P2
shows that the remaining 15 cents was purchased for `2,00,000/-. Thus, the total value of the property
shown in Exts.P1 and P2 is 3,50,000/-. Thus, the value shown in Exts.P1 and P2 is more than sufficient to show that the upset price of 1,00,000/- fixed by the Execution Court is very low and inadequate.
is liable to be set aside in liminie and I do so. The Execution Court is directed to ascertain whether
notice has been duly served to the 1st respondent/petitioner in the execution proceedings and proceed accordingly, afresh after making sure that notice has been duly served to the Judgment Debtors. The proclamation of sale shall be drawn afresh, in accordance with the procedure contemplated under Order XXI Rule 66 of the Code of
O.P.(C) No. 1558 of 2016
-: 5 :-
Civil Procedure,1908.
This Original Petition (Civil) is disposed of
accordingly.
Sd/-
K. HARILAL,
JUDGE
DST
//True copy//
P.A. To Judge
2 issues framed by the court
Whether notice was duly served to the judgment debtor as required by law.
Whether the upset price fixed by the execution court for the sale of the property was inadequate.
1 provisions across 1 enactments
Joseph Antony
Thankey Service Co-Operative Bank Ltd.
K. Harilal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
