Allowed

Babu T.K. v. Subramanian

Kerala HC26 Sept 2022OP(C)/582/2022

Case brief

AI extract

What is this about?

The High Court set aside the subordinate court order that fixed property value and sale extent without considering party filings. It directed the lower court to reconsider value based on party estimates and evidence before fixing upset price and proceeding with sale.

What did the court decide?

Impugned order set aside; parties permitted to file estimates; lower court directed to consider evidence and fix market value before deciding extent of sale.

Babu T.K. Vs Subramanian — Execution and Attachment | Kerala HC (2022)

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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 C.S.DIAS

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MONDAY, THE 26TH DAY OF SEPTEMBER 2022 / 4TH ASWINA, 1944

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OP(C) NO. 582 OF 2022

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EP 2/2021 IN OS 37/2015 OF SUB COURT DEVIKULAM

¶7

PETITIONER:

¶8

BABU T.K.
AGED 54 YEARS
S/O.KUMARAN, THAAZHATHUVEETIL, ADIMALYKARA, MANNAM
KANDAM VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT,
PIN 685 613

¶9

BY ADVS.
A.T.ANILKUMAR
V.SHYLAJA

¶10

RESPONDENT:

¶11

SUBRAMANIAN
AGED 54 YEARS
S/O. CHELLAPPAN, NAMBYARUPARAMBIL HOUSE, PULLUVAZHI
KARA, RAYAMANGALAM VILLAGE, DEVIKULAM TALUK,
KUNNATHUNADU, PIN 683541

¶12

BY ADVS.
DINESH R.SHENOY
A.JOSEPH GEORGE(K/547/2007)
EBIN MATHEW(K/483/2015)
P.ROHIT PREMANANDAN SHENOY(K/000195/2017)
SILESH S. PRABHU(K/510/2020)
SWATHI R. KRISHNAN(K/001619/2020)

¶13

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26.09.2022,
ALONG WITH OP(C).1561/2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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O.P (C) NOS.582 & 1561 OF 2022

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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 C.S.DIAS

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MONDAY, THE 26TH DAY OF SEPTEMBER 2022 / 4TH ASWINA, 1944
OP(C) NO. 1561 OF 2022

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OS 37/2015 OF SUB COURT DEVIKULAM

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PETITIONER:

¶22

SUBRAMANIAN
AGED 59 YEARS
S/O. CHELLAPPAN,
NAMBYARUPARAMBIL HOUSE, PULLUVAZHY KARA,
RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK,
ERNAKULAM
PIN - 683543

¶23

BY ADVS.
DINESH R.SHENOY
EBIN MATHEW

¶24

RESPONDENT:

¶25

BABU T.K
S/O. KUMARAN,
THAZHATHUVEETTIL, ADIMALY KARA,
MANNAINKANDAM VILLAGE, DEVIKULAM TALUK,
IDUKKI, PIN – 685561

¶26

 ADV. A.T ANIL KUMAR

¶27

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
26.09.2022, ALONG WITH OP(C).582/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:

¶28

O.P (C) NOS.582 & 1561 OF 2022

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¶30

Dated this the 26^th day of September, 2022

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COMMON JUDGMENT

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As the original petitions are between the same parties and are filed challenging the same order dated 03.03.2022 passed in EP No.2/2020 in O.S. No.37/2015 of the Court of the Subordinate Judge, Devikulam (court below), they are being disposed of by this common judgment. For the sake of convenience, the parties are referred to as per the pleadings in O.P(C) No.1561/2022, which is treated as the leading case.

¶33

The petitioner is the decree holder in the above execution petition filed against the respondent to execute the decree in O.S.No.37/2015. The petitioner produced two documents before the court below to substantiate the fair value of the property. He also produced the valuation

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O.P (C) NOS.582 & 1561 OF 2022

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certificate of the building prepared by the Assistant Executive Engineer. The encumbrance certificate and the valuation certificate of the property were also produced. The draft sale proclamation was filed on 30.09.2021, showing the estimated value of the property as Rs.18,39,503.97. As the counsel for the respondent did not appear before the court below, the proclamation was directed to be sent to the respondent by registered post. Accordingly, the draft sale proclamation was sent to the respondent. The respondent filed O.P.(C) No.2081/2021 before this Court, challenging the proclamation. This Court, by Ext.P8 judgment, set aside the proclamation and directed the court below to reconsider the mater afresh. The petitioner has produced the valuation certificate and the fair value certificate of the property. The petitioner pointed out that the sale consideration agreed between the parties was only Rs.15,00,000/-, which includes the building. The court below, without appreciating the valuation certificate and the documents

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O.P (C) NOS.582 & 1561 OF 2022

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5

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on record, arrived at a conclusion that there is no evidence as to the market value of the property to be sold and fixed the value of the property at Rs.51,39,504/-. The court below has also limited the extent of the property to be sold to six cents. Ext.P12 proceedings shows that the court below has arrived at the above conclusion without proper application of mind. The court below, by the impugned Ext.P14 order, has directed the sale of six cents of land and the building for realising decree debt. Ext.P14 is erroneous and wrong. Hence, the original petition.

¶40

The respondent has filed O.P.(C)No.582/2022, challenging the very same Ext.P14 order, principally on the ground that only four cents of land need be sold to realise the decree debt. The direction of the court below to sell six cents of land and the building is unsustainable in law. Hence, the original petition.

¶41

Heard; Sri. Dinesh R. Shenoy, the learned counsel appearing for the petitioner/decree holder and Sri.

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O.P (C) NOS.582 & 1561 OF 2022

¶43

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A.T.Anil Kumar, the learned counsel appearing for the respondent/judgment debtor.

¶45

The point is whether there is any error or illegality in Ext.P14 order.

¶46

The petitioner has filed Ext.P2 execution petition to realise an amount of Rs.23,38,342/- and the cost of the proceedings. The court below, by Ext.P7, had settled the proclamation. Ext.P7 was challenged by the respondent before this Court in O.P.(C) No.2081/21. This Court, by Ext.P8 judgment,set aside Ext.P7 proclamation and passed the following directions:-

¶47

“4. Consequently, this original petition is allowed. Ext.P3 stands set aside. The learned Execution Court is directed to proceed to decide whether the entire property is required to satisfy the decree debt first. Then, permit parties to adduce evidence to fix the actual market value of the property and thereafter to fix the upset price and proceed with sale in accordance with law . The learned Execution Court is further directed to exercise these formalities within a period of three months from the date of production of a copy of this judgment or its receipt to ensure that the decree holder is getting opportunity to enjoy the fruits of

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O.P (C) NOS.582 & 1561 OF 2022

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the decree obtained after filing suit in the year 2015.

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Both parties are directed to appear before the Execution Court on 04.01.2022 at 11.00 a.m. without any further notice. The original petitioner/judgment debtor is directed to file his objection, if any and also materials to support the market value of the property in support of this contention within five weeks from today. Needless to say that the decree holder is also at liberty to adduce further evidence in this regard, if he opts, to do so. “

¶52

Pursuant to Ext.P8 judgment, the petitioner filed Ext.P10 balance statement showing that an amount of Rs.25,02,672/- is due to him. He has also placed on record Exts.P4 to P6 to prove the value of the property and the building. The respondent has not filed any estimate/objection regarding the market value of the property.

¶53

Order XXII Rule 66 of the Code reads as follows:-

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“ Proclamation of sales by public auction.- (1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause proclamation of the intended sale to be made in the language of such Court.

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(2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment -debtor and shall state the time and place of sale, and specify as fairly and

¶56

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O.P (C) NOS.582 & 1561 OF 2022

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accurately as possible-

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a) the property to be sold [or, where a part of the property would be sufficient to satisfy the decree, such part];

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b) the revenue assessed upon the estate or part of the state, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;

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c) any incumbrance to which the property is liable;

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d) the amount for the recovery of which the sale is ordered; and

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e) every other thing the Court considers material for a purchaser to know in order to judge of the nature and value of the property;

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[Provided that where notice of the date for settling the terms of the proclamation has been given to the judgment-debtor by means of an order order rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs:

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[Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given, by either or both of the parties.]

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(3). Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation.

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(4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in

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O.P (C) NOS.582 & 1561 OF 2022

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respect to any such matters and require him to produce any document in his possession or power relating thereto.”

¶71

Second proviso to Rule 66 (2) highlighted above, unambiguously stipulates that the court below shall not enter into the proclamation of sale at its own estimate, but the proclamation shall include the estimate, if any,given by either or both the parties.

¶72

This Court in Ext.P8 judgment has specifically directed the manner in which the court below has to

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arrive at the value of the property and building.

¶74

A conjoint reading of Ext.P8 judgment and second proviso to Rule 66 of Order XXI of the Code substantiates that the court below had to first look into the estimates that were furnished by the parties, fix the value of the property, decide whether the entire property is to be sold, permit the parties to let in evidence to fix the actual market value of the property, fix the upset price and then proceed with the sale.

¶75

Ext.P14 order clearly shows that the court below

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O.P (C) NOS.582 & 1561 OF 2022

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10

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has without considering the materials/estimate filed by the petitioner has concluded and fixed the value of six cents of land at Rs.28,80,000- and the value of the building at Rs.3,39,503.97, thus totalling to an amount of Rs.32,19,504/-. There is no mention in the order, the manner in which the above figure has been arrived at.

¶79

On the above analysis of the facts and the law, I have no hesitation to hold that Ext.P14 order has been passed by the court below in total disregard to second proviso to Rule 66 of Order XXI of the Code and the directions stipulated by this Court in Ext.P8 judgment. Hence, Ext.P14 order is unsustainable in law and is liable to be set aside.

¶80

In the result, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I allow both the original petitions in the following manner:-

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(i) Exts.P12 and P14 orders are set aside.

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(ii) The petitioner and the respondent are permitted

¶83

O.P (C) NOS.582 & 1561 OF 2022

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to file their estimates/such other materials as regards the value of the property before the court below within one month from today.

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(iii) The court below shall based on the

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estimates/materials produced by the parties, reconsider the market value of the property as stipulated in Ext.P8 judgment.

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(iv) The court below shall permit the petitioner and the respondent to let in evidence, including seeking the assistance of an advocate commissioner with the assistance of a valuer, if necessary, to substantiate their respective stands.

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(v) After the evidence is let in by both sides, the court below shall decide the market value of the property, and then decide the extent of the property and/or building that needs to be sold to realise the decree debt. Based on the said findings, the court below shall fix the upset price and proceed with the execution proceedings.

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(vi) As the execution petition is of the year 2020, the

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O.P (C) NOS.582 & 1561 OF 2022

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court below shall make every endeavour to dispose of the

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same, in accordance with law and as expeditiously as possible.

Sd/-

C.S.DIAS, JUDGE

rmm26/09/2022

O.P (C) NOS.582 & 1561 OF 2022

¶99

¶100

APPENDIX OF OP(C) 1561/2022

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PETITIONER EXHIBITS

¶102

Exhibit P1TRUE PHOTOCOPY OF THE DECREE DATED
30/11/2019 IN O.S.NO.37/2015, SUB COURT,
DEVIKULAM.
Exhibit P2TRUE PHOTOCOPY OF EP.NO.2/2020 IN
O.S.NO.37/2015, SUB COURT, DEVIKULAM
Exhibit P3TRUE PHOTOCOPY OF THE HANDWRITTEN COPY OF
THE A DIARY OF THE EXECUTION PETITION,
EP.NO.2/2020 IN OS.NO.37/2015, SUB COURT,
DEVIKULAM FROM 12/3/2020 TILL 13/12/2021.
Exhibit P4TRUE PHOTOCOPY OF LETTER ISSUED BY SUB
REGISTRAR, DEVIKULAM TO THE SUB COURT,
DEVIKULAM DATED 1/9/2021.
Exhibit P5TRUE PHOTOCOPY OF LETTER ISSUED BY THE
TAHSILDAR, DEVIKULAM TO SUB COURT,
DEVIKULAM DATED 16/2/2022
Exhibit P6TRUE PHOTOCOPY OF LETTER DATED 1/9/2021
WITH VALUATION STATEMENT AND ESTIMATE
FORWARDED BY THE ASSISTANT EXECUTIVE
ENGINEER, LSGD SUB DIVISION, ADIMALY TO
THE SUB COURT, DEVIKULAM.
Exhibit P7TRUE PHOTOCOPY OF ORDER DATED 21/10/2021
IN EP 2/39¢0 IN O.S.NO.37/2015, SUB
COURT, DEVIKULAM
Exhibit P8TRUE PHOTOCOPY OF JUDGMENT DATED
20/12/2021 IN OP(C)NO.2081/2021, HIGH
COURT OF KERALA
Exhibit P9TRUE PHOTOCOPY OF BALANCE STATEMENT FILED
BY THE PETITIONER/DECREE HOLDER DATED
23/11/2021.
Exhibit P10TRUE PHOTOCOPY OF BALANCE STATEMENT DATED
19/3/2022 IN O.S.NO.37/2015, SUB COURT,

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O.P (C) NOS.582 & 1561 OF 2022

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14

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DEVIKULAM.

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Exhibit P11PHOTOGRAPHS OF THE PATHWAY LEADING TO THE
DECREE SCHEDULE PROPERTY.

¶107

Exhibit P12TRUE PHOTOCOPY OF PROCEEDINGS DATED
28/2/2022 IN EP NO.2/2020 IN
O.S.NO,37/2015, SUB COURT, DEVIKULAM.

¶108

Exhibit P13TRUE PHOTOCOPY OF THE AFFIDAVIT FILED BY
THE PETITIONER DATED 3/3/2022 IN
EP.NO.2/2020 IN OS.NO.37/2015, SUB COURT,
DEVIKULAM

¶109

Exhibit P14TRUE PHOTOCOPY OF THE ORDER DATED
3/3/2022 IN EP.NO.2/2020 IN
O.S.NO.37/2015, SUB COURT, DEVIKULAM.

¶110

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O.P (C) NOS.582 & 1561 OF 2022

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APPENDIX OF OP(C) 582/2022

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PETITIONER EXHIBITS

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Exhibit P1TRUE COPY OF THE DECREE PASSED IN OS NO.
37/2015 ON THE FILE OF SUB COURT,
PERUMBAVOOR DATED 04-07-2015
Exhibit P2THE TRUE COPY OF THE EXECUTION PETITION
EP NO. 2/2021 IN OS NO. 37/2015 ON THE
FILE OF SUB COURT, DEVIKULAM DATED 10-03-
2020
Exhibit P3THE TRUE COPY OF THE SAID ORDER DATED 21-
10-2021 IN EP NO. 2/2021 IN OS NO.
37/2015 ON THE FILE OF SUB COURT,
DEVIKULAM DATED 21-10-2021

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Exhibit P4TRUE COPY OF THE SALE PROCLAMATION IN EP
NO. 2/2021 IN OS NO. 37/2015 ON THE FILE
OF SUB COURT, DEVIKULAM DATED 29-09-2021
Exhibit P5TRUE COPY OF THE ORDER IN OP(C) NO.
2081/2021 DATED 20-12-2021

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Exhibit P6TRUE COPY OF THE ORDER DATED 03-03-2022
IN EP NO. 2/2020 IN OS NO. 37/2015 ON THE
FILE OF SUB COURT, DEVIKULAM.

Babu T.K. v. Subramanian

Case brief

What is this about?

What did the court decide?

Babu T.K. v. Subramanian

Case brief

What is this about?

What did the court decide?

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