Disposed

Gangadharan Nair v. R.Krishnakumar

Kerala HC22 Jun 2016OP(C)/199/2016

Case brief

AI extract

What is this about?

The court addressed an objection to the fixation of upset price in a sale proclamation and granted an extension of time for the petitioner to deposit the remaining decree amount in installments before proceeding with the sale.

What did the court decide?

Petitioner granted time until November 13, 2016, to pay balance decree amount in two instalments by September 13 and November 13, 2016; future execution proceedings stayed pending compliance.

Gangadharan Nair Vs R.Krishnakumar — 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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WEDNESDAY, THE 22ND DAY OF JUNE 2016/1ST ASHADHA, 1938

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OP(C).No. 199 of 2016 (O)

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O.S.NO. 199/2012 OF THE SUB COURT, KOYILANDY

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PETITIONER(S) :

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1. GANGADHARAN NAIR, AGED 62 YEARS, S/O. GOVINDA KURUP, AMBADI, VELOOR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE

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2. SOBHANA AMMA, AGED 56 YEARS, W/O. GANGADHARAN NAIR, RESIDING DO.

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BY ADV. SRI.T.G.RAJENDRAN

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RESPONDENT(S) :

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1. R.KRISHNAKUMAR, AGED 46 YEARS, S/O. C.R. PRABHU, NALINI VIHAR, CHALAPPURAM, KASABA AMSOM DESOM, KOZHIKODE-673 002.

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2. R. GURUDATH, AGED 41 YEARS, S/O. C.R. PRABHU, RESIDING DO.

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BY ADVS. SRI.V.SREENATH SRI.P.K.SAJEEV

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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OP(C).No. 199 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXT.P1: TRUE COPY OF THE PLAINT O.S NO. 199/2012 DATED 26/11/2012.

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EXT.P2: A TRUE COPY OF THE COMMISSIONERS REPORT.

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EXT.P3: A TRUE COPY OF THE ORDER FIXING THE UPSET PRICE AS 30,00,000/- IN E.P 52/2014 IN O.S.NO. 199/2012 DATED 04/12/2015

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EXT.P4: TRUE COPY OF THE PROCLAMATION OF SALE OF IMMOVABLE PROPERTY IN EP 52/14 IN OS 199/12 ON THE FILE OF SUB COURT, KOYILANDY.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

K. HARILAL, J.

= = = = = = = = = = = = = = = = = = = = O.P.(C) No. 199 of 2016

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- - - - - - - - - -- - - - - - - - - - - - - - Dated this the 22nd day of June, 2016

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J U D G M E N T

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This Original Petition (Civil) has been filed, challenging Exts.P3 and P4 orders passed by the court below.

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The grievance of the petitioner in this Original Petition is that the upset price fixed by the court below is inadequate and lesser than the actual market value of the property. Going by Ext.P3, it is seen that an Advocate Commissioner was appointed to assess the market value with the assistance of an Engineer working in Public Works Department and the Advocate Commissioner filed Ext.P2 report, fixing the market value at `25,92,300/-. Thus, the upset price fixed by the court below is on the basis of the market value of the property assessed by the Advocate Commissioner

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O.P.(C) No. 199 of 2016

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-: 2 :-

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with the assistance of an expert. Since the upset

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price was fixed on the basis of an expert opinion also, the court below refused to interfere with the fixation of upset price and passed Ext.P3 order, rejecting the objection raised by the petitioner and issued Ext.P4 proclamation for sale. Going by Ext.P2 Commission Report, it could be seen that the Commissioner has assessed the market value of the property with the assistance of an Assistant Engineer, working in the Public Works Department. I do not find any kind of infirmity in Ext.P2 report filed by the Advocate Commissioner. Therefore, the court below is justified in passing Ext.P3. There is no reason to interfere with the upset price fixed by the court below and the court below is justified in issuing Ext.P4 proclamation for sale.

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O.P.(C) No. 199 of 2016

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-: 3 :-

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The learned counsel for the petitioner

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submits that he is ready to remit the decree amount. He wants some more time to pay the same. At the time

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of admission of this Original Petition on 19.01.2016, this Court directed the petitioner to deposit 10,00,000/- before the Execution Court, within one month and in compliance with the said direction, the petitioner had deposited 10,00,000/-. When the case was again called on 23.03.2016, this Court again directed the petitioner to deposit 10,00,000/- more before 31.05.2016; but the petitioner could not deposit 10,00,000/-. The learned counsel for the petitioner submits that he has deposited `2,00,000/-, after 31.05.2016, in compliance with the direction in the order dated 23.03.2016. Thus, it appears that out of the total

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O.P.(C) No. 199 of 2016

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-: 4 :-

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balance amount, the petitioner had deposited `12,00,000/-. Considering the entire facts and circumstances of the case and the submissions made by the learned counsel for the petitioner at the Bar, the petitioner is given time till 13^th November, 2016, to pay the entire balance amount due under the decree, by two instalments of equal amount. The 1^st instalment shall be deposited before the court on or before 13^th September, 2016 and the 2^nd instalment shall be deposited before 13^th November, 2016. In the event of failure to deposit the amount, within the specified time, this instalment facility will stand automatically cancelled. All further proceedings in Execution Petition shall be kept in abeyance till 13^th November, 2016, if the petitioner complies with the said direction. The Execution Petition shall be

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O.P.(C) No. 199 of 2016

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-: 5 :-

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posted on 1^st October, 2016, so as to ascertain the

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payment of the 1^st instalment. In the event of failure, the Execution Court shall proceed with the Execution Petition, so as to realise the entire amount in lump sum.

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This Original Petition (Civil) is disposed of accordingly.

Sd/-

K. HARILAL,

JUDGE

DST

//True copy//

P.A. To Judge

Gangadharan Nair v. R.Krishnakumar

Case brief

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Gangadharan Nair v. R.Krishnakumar

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