Allowed

Haridas Shenoy v. Domenic John

Kerala HC10 Apr 2019CRP/404/2018

Case brief

AI extract

What is this about?

The court allowed civil revision petitions regarding a sale in execution of a money decree and subsequent arrest warrant. Settlement was recorded. The sale was ordered set aside as the upset price was slashed by more than 50% and the decree remained unsatisfied. Attachment was withdrawn.

What did the court decide?

Sale of property set aside. Attachment withdrawn and communication order to SRO passed. Execution proceedings closed on settlement.

Haridas Shenoy Vs Domenic John — Execution and Attachment | Kerala HC (2019)

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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 SUNIL THOMAS

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WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941

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CRP.No. 52 of 2017

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AGAINST THE ORDER/JUDGMENT IN CMA 12/2016 of DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD DATED 03-01-2017

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AGAINST THE ORDER/JUDGMENT IN OS 143/2010 of SUB COURT, HOSDRUG DATED 29-02-2016

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REVISION PETITIONER/S:

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HARIDAS SHENOY

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AGED 55 YEARS, S/O.LATE RAGHAVA SHENOY, RESIDINHG AT MELANGOT, BALLA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.

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BY ADV. SRI.T.K.VIPINDAS

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RESPONDENT/S:

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DOMENIC JOHN AGED 45 YEARS, S/O.JOHN, RESIDING CHOLIKARA HOUSE, KALLAR VILLAGE, HOSDURG TALUK, NOW IN VALLARIKUNDU TALUK, KASARAGOD DISTRICT, PIN671532.

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BY ADV. SRI.T.V.VARGHESE

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10.04.2019, ALONG WITH CRP.404/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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C.R.P. Nos. 52 of 2017 & 404 of 2018

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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 SUNIL THOMAS

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WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941

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CRP.No. 404 of 2018

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AGAINST THE ORDER/JUDGMENT IN OS 143/2010 of SUB COURT, HOSDRUG DATED 13-04-2018

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REVISION PETITIONER/S:

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HARIDAS SHENOY AGED 56 YEARS, S/O LATE.RAGHAVA SHENOY,RESIDING AT MELANGOT, BALLA VILLAGE,HOSDURG TALUK, KASARAGOD DISTRICT.

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BY ADV. SRI.T.K.VIPINDAS

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RESPONDENT/S:

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DOMENIC JOHN AGED 46 YEARS, S/O JOHN, RESIDING CHOLIKARA HOUSE,KALLAR VILLAGE, HOSDURG TALUK, NOW IN VALLARIKUNDU TALUK,KASARAGOD DISTRICT, PIN671532.

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BY ADVS.

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SRI.T.V.VARGHESE SRI.VARGHESE K.PAUL

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10.04.2019, ALONG WITH CRP.52/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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C.R.P. Nos. 52 of 2017 & 404 of 2018

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JUDGMENT

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[CRP 52/2017, CRP.404/2018]

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The revision petitioner is the judgment debtor in proceedings arising from judgment and decree in OS No.143 of 2010, which was a decree for realisation of money. In execution of the decree, property was brought for sale and sold. Thereafter, the judgment debtor filed an application as E.A No. 21 of 2016 under Order XXI Rule 90 to set aside sale on the ground of material irregularity in the conduct of sale. The Execution Court by its order rejected the application, which was a subject matter in CMA No.12 of 2016. The lower appellate Court, after an evaluation of the materials on record, concurred with the conclusions arrived at by the Execution Court and dismissed the appeal. Aggrieved by that, the judgment debtor has preferred CRP No.52 of 2017.

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Since the decree remained unsatisfied, execution proceedings were initiated as EP No. 53 of 2017 and sought relief of arrest and detention of the judgment debtor. After hearing the objections under Order XXI Rule 37, warrant was ordered by order on 13.04.2018, which is the subject matter of challenge in CRP No. 404 of 2018.

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C.R.P. Nos. 52 of 2017 & 404 of 2018

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Pending the proceedings, both parties are stated to have settled the disputes out of Court. IA No. 1 of 2019 has been filed to record an agreement entered into between the parties. As per the terms of the agreement, the entire amount due as per the decree was paid by the judgment debtor to the decree holder to his satisfaction. It was also submitted that the decree holder has no objection in setting aside the sale and to close the execution proceedings as decree is satisfied.

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After hearing both sides and perusing the records, I am satisfied that the parties have voluntarily entered into settlement. Hence, full satisfaction is recorded.

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On merits, it seems that originally the Execution Court fixed the upset price at Rs.11 lakhs. The property was put for sale. However there was no bidders. Thereafter the Court below slashed down the upset price to Rs.5 lakhs and the property was sold in auction and bid by the decree holder. It seems that the upset price was slashed down by more than 50% by the Court below. Even thereafter, the decree could not be satisfied. The only material available before the Court below was the fair value which was around 1.5 lakhs. That

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C.R.P. Nos. 52 of 2017 & 404 of 2018

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need not always reflect the actual market value of the property. The fact that even after the sale of the property, some amount remained, is an indicator of it. It seems that the Court below, while fixing the upset price, has not considered the other material points, which may enhance the market value of the property. Having considered this, I feel that there is substance in the grounds set up by the judgment debtor.

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Having considered the above, I am inclined to set aside the orders in EA No. 21 of 2016, as confirmed by CMA No. 12.of 2016. Accordingly, sale stand set aside.

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CRPs stand allowed to that extent. Consequently, both sides agree that the attachment can be withdrawn. The Execution Court shall communicate the order vacating the attachment to the concerned SRO, on production of a certified copy of this order.

Sd/-

SUNIL THOMAS

JUDGE

das

Haridas Shenoy v. Domenic John

Case brief

What is this about?

What did the court decide?

Haridas Shenoy v. Domenic John

Case brief

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What did the court decide?

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