Partly allowed

Ottakandathil Raju v. Secretary, Parappanangadi Regional Housing Co-Op: Society Ltd.

Kerala HC7 Mar 2017OP(C)/3676/2013

Case brief

AI extract

What is this about?

This civil revision petition challenged a Rule 66 notice for the entire sale of landed property. The court set aside the notice, directing the lower court to consider if a smaller portion of the property could satisfy the decree amount before a survey and sale assessment. The matter was remanded for expedited proceedings within six months.

What did the court decide?

The notice under Rule 66 is set aside; the lower court is directed to consider sufficiency and carve out the residential portion before proceeding with a survey and sale.

Ottakandathil Raju Vs Secretary, Parappanangadi Regional… — Property and Title | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

TUESDAY, THE 7TH DAY OF MARCH 2017/16TH PHALGUNA, 1938

¶5

OP(C).No. 3676 of 2013 (O)

¶6

---------------------------------E.P.No.48/11 IN ARC 561/10, SUB COURT, TIRUR

¶7

PETITIONER/JUDGMENT DEBTOR IN E.P.48/2011 OF SUB COURT, TIRUR: -

¶8

SRI.OTTAKANDATHIL RAJU, AGED 75 YEARS, S/O MAMAN, P.O. MOONNIYOOR, MOONNIYOOR AMSOM AND DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT.

¶9

BY ADV. SRI.PRAVEEN K. JOY

¶10

RESPONDENT/DECREE HOLDER IN IN E.P 48/2011 OF SUB COURT, TIRUR:-

¶11

SECRETARY,

¶12

THE PARAPPANANGADI REGIONAL HOUSING CO-OPERATIVE SOCIETY LTD. NO.(M) 38, P.O.PARAPPANANGADI, MALAPPURAM DISTRICT - 678 024.

¶13

R1 BY ADV. SRI.V.G.ARUN

¶14

R1 BY ADV. SRI.T.R.HARIKUMAR

¶15

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

OP(C).No. 3676 of 2013 (O)

¶17

APPENDIX

¶18

PETITIONER'S EXHIBITS : -

¶19

EXHIBIT P1 : TRUE PHOTOCOPY OF THE E.P.48/2011 OF THE SUB COURT, TIRUR.

¶20

EXHIBIT P2 : TRUE PHOTOCOPY OF THE OBJECTIONS SUBMITTED IN E.P. NO. 48/2011 ON THE FILES OF SUB COURT, TIRUR.

¶21

EXHIBIT P3 : TRUE PHOTOCOPY OF THE SALE NOTICE DATED 4.10.2013 IN E.P.NO.48/2011 ON THE FILES OF SUB COURT, TIRUR.

¶22

RESPONDENT'S EXHIBITS : - NIL.

// TRUE COPY //

P.A. TO JUDGE

DMR/-

P. SOMARAJAN, J.

O.P.(c) No. 3676 of 2013

¶28

Dated this the 07^th day of March, 2017

¶29

JUDGMENT

¶30

The petitioner is the first judgment debtor in E.P.No.48 of 2011 of Sub Court, Tirur. An award passed under Section 69 of the Kerala Co-operative Societies Act, put in execution before the Sub Court, Tirur. During the pendency of execution, the first judgment debtor effected payment of Rs.3,50,000/-. The award sought to be executed is for an amount of Rs.6,39,187/-, out of which an amount of Rs.3,50,000/- was already paid by the judgment debtor. According to the petitioner herein, the balance amount would comes to Rs.2,89,187/-. In the execution, the decree holder sought the sale of 16 cents of landed property and the building situated therein and proceedings were initiated. The judgment debtor received Rule 66 notice under Order XXI CPC, wherein the entire extent of 16 cents of landed property along with the building therein sought to be sold by stating the upset price at Rs.8,00,000/- and balance decree amount stating as

¶31

Rs.4,42,763/-. The above said notice exhibited as Exhibit P3

¶32

O.P.(c) No. 3676 of 2013

¶33

¶34

is under challenge in this petition mainly on the reason that the property having an extent of 16 cents and the building therein would comes to an amount of Rs.50,00,000/- and that for the realization of the decree amount (award amount), only a portion of the property would be sufficient. It was also submitted by the learned counsel that a landed property having an extent of two or three cents can be separated and carved out excluding the portion wherein the building is situated which is the only residential place of the judgment debtor and that it is not at all necessary to sell the entire extent of 16 cents and building therein for the recovery of decree amount which comes to Rs.4,42,763/-. An objection was also raised on the very same ground. It was submitted by the learned counsel that no order was passed on that objection and without passing an order, the Execution Court proceeded with the sale and issued notice under Rule 66 of Order XXI CPC. Going by Order XXI CPC and the rules governing the sale of property in execution it is mandatory on the execution court at first to adjudicate with respect to the extent of property which is required for satisfying the decree amount and to carve out that portion of property so as to have a court sale in

¶35

O.P.(c) No. 3676 of 2013

¶36

¶37

accordance with the law in force. It is not at all permissible to have the sale of entire property without looking into the quantum of or extent of amount to be realized and without ascertaining whether any portion of the said property would satisfy the decree amount. To that extent, in my view, the lower court has not exercised its discretion in its correct perspective, which is liable to be intercepted by exercising supervisory jurisdiction under Article 227 of the Constitution of India and I do so. The notice under Rule 66 (Exhibit P3) is hereby set aside. The lower court is directed to consider the objection raised by the judgment debtor regarding the question of sufficiency of landed property and its extent so as to satisfy the decree amount before further proceeding in the matter by issuing a Survey Commission so as to ascertain the landed property, if any, available for the sale excluding the portion wherein the building is situated and also to have an assessment with respect to the market value of the property and to proceed with the matter in accordance with law. The parties shall appear before the lower court on 27.03.2017. The lower court is further directed to expedite the execution proceedings as early as possible, at any rate, within a time

¶38

O.P.(c) No. 3676 of 2013

¶39

¶40

limit of six months from the date of receipt of a copy of this judgment.

¶41

Original petition is disposed of accordingly. No order as

¶42

to costs.

¶43

P. SOMARAJAN, JUDGE

¶44

DMR/-

Ottakandathil Raju v. Secretary, Parappanangadi Regional Housing Co-Op: Society Ltd.

Case brief

What is this about?

What did the court decide?

Ottakandathil Raju v. Secretary, Parappanangadi Regional Housing Co-Op: Society Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Nss Karayogam Branch NO.1365 Vs Mahim Aboobaker

Ammanarcoil Vs St. Thomas Ferona Church

Sweety Xavier Vs Sebastian Joseph

P.N. Velayudhan Vs Corporation of Calicut

K L Rathan Vs Unni K S

Lakshmikutty Amma Vs Udayamohanan