Allowed

Nabeena.N v. the Nileshwar Service Co-Operative Bank

Kerala HC8 Sept 2016OP(C)/3277/2013

Case brief

AI extract

What is this about?

This is an original civil petition challenging a draft sale proclamation in execution proceedings due to inadequacy of the upset price. The High Court quashed the proclamation for non-compliance with Order XXI Rule 66 CPC.

What did the court decide?

The impugned order setting aside the auction proclamation is set aside and the matter is remanded to the execution court for fresh consideration.

Nabeena.N Vs the Nileshwar Service Co-Operative Bank — 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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THURSDAY, THE 8TH DAY OF SEPTEMBER 2016/17TH BHADRA, 1938

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OP(C).No. 3277 of 2013 (O)

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AGAINST THE ORDER/JUDGMENT IN EP 142/2011 of SUBORDINATE COURT, HOSDRUG

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PETITIONER(S):

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NABEENA.N,AGED 32 YEARS

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D/O.MUHAMMED HAJI, ORCHA, KOTTAPPURAM, P.O.KOTTAPPURAM, NILESHWAR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.

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BY ADVS.SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN

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RESPONDENT(S):

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THE NILESHWAR SERVICE CO-OPERATIVE BANK LIMITED NILESHWAR, P.O.NILESHWAR, NILESHWAR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT-671121, REPRESENTED BY ITS SECRETARY.

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R1 BY ADV. SRI.T.K.VIPINDAS R1 BY ADV. SRI.K.V.SREE VINAYAKAN R1 BY ADV. SRI.K.M.MUHAMMED HUSSAIN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 3277 of 2013 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT-P1: A TRUE COPY OF THE AWARD IN A.R.C. NO.1192 OF 2010 PASSED BY THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), HOSDURG.

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EXHIBIT-P2: A TRUE COPY OF THE EXECUTION PETITION FILED BY THE RESPONDENT/PLAINTIFF AS E.P.NO.142 OF 2011 BEFORE THE SUBORDINATE JUDGE'S COURT, HOSDURG.

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EXHIBIT-P3: A TRUE COPY OF THE APPLICATION FILED AS E.A.NO.140 OF 2013 IN E.P.NO.142 OF 2011.

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EXHIBIT-P4: A TRUE COPY OF THE DRAFT SALE PROCLAMATION.

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EXHIBIT-P5: A TRUE COPY OF THE COUNTER FILED BY THE PETITIONER IN E.A.NO.140 OF 2013 IN E.P.NO.142/2011.

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EXHIBIT-P6: TRUE COPY OF THE HAND WRITTEN ORDER DATED

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2.9.2013.

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RESPONDENT(S)' EXHIBITS

NIL

TRUE COPY

SKS P.A TO JUDGE

K.HARILAL, J.

.................................................... OP(C) NO.3277 of 2013

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..................................................... Dated this the 8^th day of September, 2016

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JUDGMENT

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The petitioner is the judgment debtor in E.P.No.142 of 2011 on the files of the Court of Subordinate Judge, Hosdurg. This original petition (civil) has been filed challenging Exhibit P4 proclamation of sale drawn in execution of the decree, which is sought to be executed against her. It is the case of the petitioner that the property would fetch more than 40,00,000/- (Rupees forty lakhs only). But the rate₹ fixed by the court below is 16,00,000/- (Rupees sixteen₹ lakhs only). Thus, this Original Petition (Civil) has been filed assailing inadequacy of the upset price fixed by the court

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below.

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Apparently the impugned order is cryptic as well as laconic. Several lines in the printed form are seen left blank. The execution court has not applied its mind as prescribed under Rule 66 of Order XXI. Consequently, the impugned order is liable to be set aside at the threshold and I do so.

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OP(C) NO.3277 of 2013

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The matter is remitted back to the execution court for fresh consideration. The execution court shall draw the proclamation for sale afresh, after considering the objection filed by the petitioner and after affording an opportunity of being heard to her, strictly in accordance with the statutory mandate under Rule 66 of Order XXI, within a period of one month from the date of receipt a copy of this judgment.

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The original petition (civil) is disposed of as above.

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K.HARILAL, JUDGE

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sks/9/9/2016

Nabeena.N v. the Nileshwar Service Co-Operative Bank

Case brief

What is this about?

What did the court decide?

Nabeena.N v. the Nileshwar Service Co-Operative Bank

Case brief

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What did the court decide?

What the court decided

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