Disposed

Valsamma Sebastian v. Sivadasan

Kerala HC3 Oct 2016OP(C)/1910/2016

Case brief

AI extract

What is this about?

Court disposed of a writ petition challenging a sale proclamation. Granted five months time to pay decree amount in installments instead of the prayed seven months, directing lower court to postpone sale pending payment.

What did the court decide?

Petitioner granted five months time to pay decree amount in five equal monthly installments, starting 28.10.2016. Sale postponed pending payment.

Valsamma Sebastian Vs Sivadasan — 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.RAMAKRISHNAN

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MONDAY, THE 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938

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OP(C).No. 1910 of 2016 (O)

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E.P.NO. 123/2015 IN O.S.NO. 453/2011 OF THE SUBORDINATE COURT, OTTAPPALAM

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PETITIONER(S) :

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VALSAMMA SEBASTIAN,

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AGED 52 YEARS, W/O. KONGAMALA SEBASTIAN, THRITHALA AMSOM, MATTAYA DESOM, PATTAMBI TALUK.

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BY ADV. SRI.SAIBY JOSE KIDANGOOR

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RESPONDENT(S) :

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SIVADASAN,

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AGED 54 YEARS, S/O. NECHIKKADAN KUNHIPPARAN, KUNNUMPURAM HOUSE, A.R NAGAR AMSOM DESOM, THRIURANGADI TALUK, PIN 676 306.

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BY ADVS. SRI.K.B.ARUNKUMAR SRI.RANJIT BABU

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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OP(C).No. 1910 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1 A TRUE COPY OF THE E.P.NO. 123/2015 IN O.S.NO. 453/2011 OF SUB COURT, OTTAPALAM DATED 23.09.2015.

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EXHIBIT P2: A TRUE COPY OF THE OBJECTION PREFERRED BY THE PETITIONER IN E.P.NO. 123/2015 IN O.S.NO. 453/2011 OF SUB COURT, OTTAPPALAM 13.01.2016.

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EXHIBIT P3: A TRUE COPY OF AN ORDER IN E.P.NO. 123/2015 IN O.S.NO. 453/2011 OF SUB COURT, OTTAPPALAM DATED 05.07.2016 TO PROCLAIM AND SALE OF THE PLAINT SCHEDULE PROPERTY ON 08.08.2016.

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EXHIBIT P4: A TRUE COPY OF THE AUCTION ADVERTISEMENT IN E.P.NO. 123/2015 IN O.S.NO 453/2011 OF SUB COURT, OTTAPALAM.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

K.RAMAKRISHNAN, J.

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O.P.(C) No.1910 of 2016

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Dated this the 3^rd day of October, 2016

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JUDGMENT

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This petition is filed by the petitioner challenging Ext.P4 sale proclamation issued by the court below under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioner is the sole judgment debtor in E.P.123/2015 in O.S.453/2011 on the file of the Subordinate Judges Court, Ottappalam evidenced by Ext.P1 execution petition. The suit was filed by the respondent for recovery of money and an exparte decree was passed and in execution of that decree, Ext.P1 execution petition has been filed by the respondent. Petitioner entered appearance and filed Ext.P2 objection and it was posted to 05.07.2016 for hearing on the question of objection. Without considering the objection, Ext.P3 order was passed for sale of the property on 08.08.2016 and report on 09.08.2016. Ext.P4 is the sale proclamation issued fixing the upset prize of the property of Rs.4,00,000/- where the property worth more than the same. Challenging the same, this petition has been filed by the petitioner.

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Heard Smt.Sheeba, counsel representing the counsel appearing for the petitioner, Sri.Saiby Jose Kidangoor and Sri.Arun

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O.P.(C) No.1910 of 2016

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Kumar, counsel appearing for the respondent.

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The counsel for the petitioner submitted that, if 7 months time is granted, she will be able to pay the entire amount and the property worth more than crores has been ordered to be sold for Rs.4,00,000/-, which is illegal.

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On the other hand, the counsel for the respondent submitted that the suit is of the year 2011 and the interim order passed by this court has not been complied with. However he has no objection in granting reasonable time as fixed by this court for payment of the amount.

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It is an admitted fact that an exparte decree has been passed against the petitioner in O.S.453/2011 of Sub Court, Ottappalam in the suit filed by the respondent for realisation of the amount due from the petitioner. She had no case that she filed any application to set aside the exparte decree. Since the amount was not paid, respondent filed Ext.P1 execution petition as E.P.123/2015 before the Sub Court, Ottappalam and the petitioner entered appearance and filed Ext.P2 objection to the same, stating that she is taking steps to file application to set aside expate decree and being an exparte decree, it is not binding on her. Till the application is disposed of, the execution proceedings will have to be kept in abeyance. The

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O.P.(C) No.1910 of 2016

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documents relating to the property has been deposited with Kerala State Financial Enterprises, Pattikkadu branch and taken Rs.5,00,000/loan and there was no necessity for the petitioner to borrow any amount from the respondent. She had taken a loan of Rs.7,00,000/from the Federal Bank and she had discharged the loan. She is working as a teacher in a private school at Pattambi and she had no acquaintance with the respondent. The respondent is not entitled to execute the decree and prayed for dismissal of that application and she wanted four months stay of the execution.

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Since there was no representation on 05.07.2016, the court below had passed Ext.P3 order for proclamation to sell of the property on 08.08.2016. Though the counter statement was filed on 13.01.2016, till today, no steps have been taken by the petitioner to file the application to set aside the exparte decree as claimed in the objection. If the exparte decree is not set aside, the court below is entitled to proceed with the execution of the sale. The respondent wanted to sell the property in execution of the decree and realisation of the decree amount. No documentary evidence has been adduced by the petitioner to prove that the upset prize fixed by the court below is low also. So under such circumstances, there is no illegality committed by the court below in passing the impugned order, fixing the upset

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O.P.(C) No.1910 of 2016

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prize for the property at Rs.4,00,000/- and posting the case for sale.

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It is true that while admitting the revision petition, this court has directed the petitioner to deposit Rs.1,00,000/- towards the decree amount within two weeks, but admittedly that amount has not been deposited. However, the counsel for the petitioner submitted that, if seven months time is granted, she will be able to discharge the amount. As regards the time is concerned, the respondent has opposed the same, but left the same to the discretion of this court to fix the period during which the amount will have to be paid. Considering the circumstances that the case is of the year 2011 and no steps have been taken by the petitioner to set aside the exparte decree so far, in spite of the fact that such a mention was made in the objection filed during January 2016 and also considering the fact that she had not paid the amount in compliance with the interim order passed, this court is not inclined to grant seven months time prayed for by the petitioner for avoiding the sale of the property. However considering the fact that the petitioner is a lady, this court feels that some leniency can be shown and five months time can be granted to the petitioner to pay the amount. So the petitioner is granted five months time to pay the decree amount in five equal monthly installments. The first payment will have to start from 28.10.2016 and

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O.P.(C) No.1910 of 2016

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the remaining installments will have to be paid on 28^th of every succeeding month and last installment will have to be paid on or before 03.03.2017. If the petitioner commits any default in payment of any of the installments, then court below is entitled to proceed with the sale of the property on the sale proclamation issued by the court below. The court below is directed to post the cases on the date on which the installment will have to be paid so as to monitor the payment as well and avoid further delay in prosecuting the case. If the amounts are paid, then court below is directed to postpone the sale accordingly till the time for payment granted by this court expires.

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With the above direction and observation the petition is disposed of.

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Registry is directed to communicate this judgment to the court below at the earliest.

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Sd/- (K. Ramakrishnan, Judge)

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//True Copy//

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P.A. to Judge

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Valsamma Sebastian v. Sivadasan

Case brief

What is this about?

What did the court decide?

Valsamma Sebastian v. Sivadasan

Case brief

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