Dismissed

K.G.Hymavathy v. Simi Davis

Kerala HC4 Aug 2016OP(C)/1643/2015

Case brief

AI extract

What is this about?

Petitioners challenged the Sub Court's order fixing an upset price for property auction under Art 226/227. The High Court upheld the lower court's discretion, noting that fixing a higher price does not prejudice the judgment debtors and the order can be reviewed later if no bidders participate.

What did the court decide?

The original petition challenging the upset price fixation order is disposed of without interference.

K.G.Hymavathy Vs Simi Davis — Civil Procedure and Limitation | 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.RAMAKRISHNAN

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THURSDAY, THE 4TH DAY OF AUGUST 2016/13TH SRAVANA, 1938

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OP(C).No. 1643 of 2015 (O)

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--------------------------E.P. NO.126/2005 IN O.S. NO.91/1998 OF SUB COURT, ERNAKULAM.

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PETITIONER(S):

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K.G. HYMAVATHY,

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WIFE OF LATE PADMANABHA PILLAI, AGED 69 YEARS, RESIDING AT KEDARAM, KADEKKUZHY, KUNDANNOOR, MARADU VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

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2. K.P. BINDU, DAUGHTER OF LATE PADMANABHA PILLAI AND WIFE OF SAJEEV NAIR, AGED 40 YEARS, RESIDING AT KEDARAM, KADEKKUZHY, KUNDANNOOR, MARADU VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

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BY ADVS.SRI.M.N.MANMADAN, SRI.M.S.IMTHIYAZ AHAMMED.

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RESPONDENT(S):

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SIMI DAVIS, DAUGHTER OF P.I. DAVIS AND WIFE OF SHAJI JACOB, RESIDING AT PULLOKKARAN HOUSE, IRINJALAKUDA, MUKUNDAPURAM TALUK, TRICHUR DISTRICT.

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BY SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE. ADV. SRI.THOMAS GEORGE.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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OP(C).No. 1643 of 2015 (O)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXHIBIT P1- TRUE COPY OF E.P. NO.126/2005 IN O.S.91/1998 ON THE FILE OF THE PRINCIPAL SUB COURT, ERNAKULAM.

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EXHIBIT P2- TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO THE DRAFT SALE PUBLICATION IN EXHIBIT P1 EXECUTION PETITION.

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EXHIBIT P3- TRUE COPY OF E.A. NO.950/2012 FILED BY THE ORIGINAL DECREE HOLDER IN EXHIBIT P1 EXECUTION PETITION.

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EXHIBIT P4- TRUE COPY OF THE COMMISSION REPORT AND SKETCH SUBMITTED BY THE ADVOCATE COMMISSIONER ELDHO CHERIAN.

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EXHIBIT P5- TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXHIBIT P4 COMMISSION REPORT AND SKETCH.

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EXHIBIT P6- TRUE COPY OF THE FAIR VALUE NOTIFICATION PUBLISHED BY THE GOVERNMENT IN RESPECT OF THE PROPERTIES COMPRISED IN SURVEY NO.94/1 OF ELAMKULAM VILLAGE.

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EXHIBIT P7- TRUE COPY OF E.A.320/2014 FILED BY THE ORIGINAL DECREE HOLDER IN EXHIBIT P1 EXECUTION PETITION.

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EXHIBIT P8- CERTIFIED COPY OF THE ORDER PASSED IN EXHIBIT P7 APPLICATION ON 30/09/2014.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

K.RAMAKRISHNAN, J.

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= = = = = = = = = = = = = = = = = O.P(C) No.1643 of 2015

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- - - - - - - - - - - - - - - - - - - - - Dated this the 04^th day of August, 2016

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This petition is filed by the petitioners challenging Ext.P8, order passed by the Sub Court, Ernakulam in E.A. No.320 of 2014 in E.P. No.126 of 2015 in O.S. No.91 of 1998, under Article 227 of the Constitution of India.

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It is alleged in the petition that the

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petitioners filed the suit for recovery of the amount and the suit was decreed and thereafter the original decree holder filed Ext.P1, E.P. No.126 of 2005 in the aforesaid suit. During the pendency of the proceedings, the respondent purchased the property. Original decree holder died and the present petitioners are impleaded as his legal heirs and they are continuing with the execution.

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OP.P(C) No.1643 of 2015

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-: 2 :-

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The original decree holder filed Ext.P3 application to appoint an Advocate Commissioner to demarcate one cent of property which according to him was sufficient to discharge the amount due under the decree. Commissioner filed Ext.P4 report demarcating one cent of property and also showing the importance of the locality. The respondent/3^rd judgment debtor filed Ext.P5 objection. Exhibit P6 is the fair value notification published by the Government for the area in which the land in question is situated. As per serial No.11 of Ext.P6, for property having residential building with private road access in that survey number, value fixed is Rs.12,48,000/per Are. The execution court fixed the upset price of the property at Rs.11,11,500/- per cent. Original decree holder wanted to fix the value of

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OP.P(C) No.1643 of 2015

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-: 3 :-

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the property as Rs.5,80,000/- per cent and to

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review that order and re-fix the value as

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Rs.5,80,000/- per cent, he filed Ext.P7

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application. But the court below as per Ext.P8 order dismissed that petition. It is challenging that order, this petition is filed.

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Heard Shri Balagopalan, who represents M.N.Manmadhan, learned counsel for the petitioners

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and Shri Thomas George, learned counsel for the respondent.

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Learned counsel for the petitioners submitted that the amount fixed by the court below is excessive and there is no possibility of getting any bidder for the same. Further, amount due to the petitioners is only Rs.5,74,000/-. So if the upset price is fixed to the extent of the amount due to

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OP.P(C) No.1643 of 2015

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-: 4 :-

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the decree holder, there will be possibility of prospective bidders who can participate in the auction.

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On the other hand, learned counsel for the respondent submitted that the property is situated near Kaloor bus stand in an important area and the court below after taking note of the importance of the locality correctly fixed the upset price and that will not cause any prejudice to the decree holder and that will only advantageous to him so that he can realise the amount due to him and the balance amount if any can be paid to the judgment debtors.

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Admittedly, the property is situated near

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Kaloor private bus stand and the Commissioner's report shows the importance of the locality.

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OP.P(C) No.1643 of 2015 -: 5 :-

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Further, as per the fair value fixed by the Government also, price of property having private road approach with residential building in that survey number is fixed as Rs.12,48,000/- per Are. But that is only the minimum value fixed by the Government and the same cannot be taken as market value of the property. That can be taken as a piece of evidence for fixing the value of the property by the court. Further, if a higher price is fixed for the property and if there are prospective bidders for purchasing the property, that will be advantageous not only to the decree holder but also to the judgment debtors. If the property is put in auction fixing the amount now fixed by the court below and there is no prospective bidders to participate in the auction, right of the decree

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OP.P(C) No.1643 of 2015

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-: 6 :-

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holder to file application to reduce upset price is not affected by this. The court below has given valid reasons to come to the conclusion as to why the land value was fixed as Rs.11,11,500/- per cent for the property in question. This Court do not find any reason to interfere with the order fixing the upset price by the court below as no illegality or impropriety is found in that exercise of discretion by the court below warranting interference by this Court under Article 227 of the Constitution of India. If the petitioner files application to reduce the upset price later, if the sale could not be conducted on he basis of the upset price fixed, then the court below is at liberty to pass appropriate orders in the application in accordance with law.

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OP.P(C) No.1643 of 2015

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-: 7 :-

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With the above observations and directions, the

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Original Petition is disposed of.

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Sd/-

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K.RAMAKRISHNAN, JUDGE.

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VSV

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//True copy//

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P.S. To Judge

K.G.Hymavathy v. Simi Davis

Case brief

What is this about?

What did the court decide?

K.G.Hymavathy v. Simi Davis

Case brief

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