Appeal filed against order dismissing application to set aside auction sale of executable property. Court held procedural compliance was established, valuation showed no irregularity, and entire property sale was justified to satisfy decree.
Sale confirmed. Execution Court directed to utilize stale stamp paper for sale certificate or refund value.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 1ST DAY OF AUGUST 2023 / 10TH SRAVANA, 1945 F.A.O.NO. 25 OF 2020
AGAINST THE ORDER DATED 05.11.2019 IN E.A.NO.29 OF 2019 IN E.P.NO.1 OF 2017 IN O.S.NO.237 OF 2010 OF THE SUB COURT, NEDUMANGAD
APPELLANTS/PETITIONERS 1 & 3/ADDL.JUDGMENT DEBTORS 2 &4/ADDL. DEFENDANTS 2 & 4:
1 LALITHA KUMARI, AGED 63 YEARS,W/O.LATE BALAKRISHNAN NAIR, SARADALAYAM, CHENCHERY, MANNANTHALA, THIRUVANANTHAPURAM DISTRICT, PIN CODE-695 043.
BY ADV D.GANESH KUMAR
RESPONDENTS/COUNTER PETITIONERS & 2ND PETITIONER/DECREE HOLDER & ADDL. JUDGMENT DEBTOR NO.3/PLAINTIFF & ADDL.DEFENDANT NO.3:
1 MURALEEDHARAN NAIR, NOW AGED ABOUT 70 YEARS, S/O.VASUDEVAN PILLAI, RESIDING AT KAMUKARAKONAM VEEDU, KARAKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN CODE-695 564.
2
F.A.O.No.25 of 2020
2 AJITH B.NAIR, AGED 31 YEARS, S/O.LATE BALAKRISHNAN NAIR, SARADALAYAM, CHENCHERY, MANNANTHALA, THIRUVANANTHAPURAM DISTRICT, PIN CODE-695 043.
R1 BY ADV SRI.M.ABDUL RASHEED
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 01.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
3
F.A.O.No.25 of 2020
JUDGMENT
P.G. Ajithkumar, J.
This is an appeal filed under Order XLIII, Rule 1(j) of the Code of Civil Procedure, 1908.
4
F.A.O.No.25 of 2020
mediation to the Mediation Centre, High Court of Kerala and the parties were directed to appear at 10.15 a.m. on 02.03.2020. The mediation failed.
5
F.A.O.No.25 of 2020
6
F.A.O.No.25 of 2020
procedural requirements and there is absolutely no reason to set aside the sale. The claims of the appellants that the property would fetch more than Rs.3 lakhs per cent is incorrect. The property is situated at an interior place and it was sold for a commensurate price.
7
F.A.O.No.25 of 2020
decree. For that reason alone, in view of the learned counsel, the sale is liable to be set aside.
insists on selling only such part of the property as is required to satisfy the decree. The Apex Court in Desh Bandhu
Guptha v. N.L.Anand & Rajinder Singh [(1994) 1 SCC
131] held as follows:
“In all execution proceedings, the Court has to first decide whether it is necessary to bring the entire attached
8
F.A.O.No.25 of 2020
property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree to be satisfied is small, the Court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provision of law, only such portion of the property should be sold. This, in our opinion, is not just a discretion, but an obligation imposed on the Court.”
In the above decision, the Apex Court held unequivocally that any sale in violation of the said insistence of law would be illegal. However, in this case, there is no material to show that a part of the 4.5 cents of land, which was sold in auction, was sufficient to satisfy the decree. The contention that coownership of the appellants and the 2nd respondent in respect of the said property continues and that also is a reason to set aside sale. They are the judgment debtors obliged to satisfy the decree. So there is nothing wrong in selling their coownership property.
9
F.A.O.No.25 of 2020
accepted. The Execution Court did not go wrong in taking the view that the sale was not liable to be set aside. Therefore, this appeal can only fail. The appeal is dismissed accordingly.
would submit that on dismissing E.A.No.29 of 2019, the Execution Court as per the proceedings dated 05.11.2019 had confirmed the sale and thereupon the 1st respondent produced stamp paper for endorsing the sale certificate. As a result of the stay ordered by this Court, the stamp paper would have become stale now. It is trite that by the act of court the right of no one shall be prejudiced. Therefore, we are of the view that there shall be direction to the Execution Court to take appropriate steps to ensure that either the said stamp paper is used to issue the sale certificate or refund the value of it as admissible under the law.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/P.G. AJITHKUMAR, JUDGE
dkr
3 issues framed by the court
Whether the auction sale of attached land was liable to be set aside due to procedural irregularities and inadequate value realization.
Whether the sale of the entire co-owned property was necessary to satisfy the decree debt or if a smaller portion would suffice.
Whether the appellants were precluded from raising objections to the sale proclamation after failing to object during the inquiry stage.
Colour shows how this judgement treated each authority
Desh Bandhu Guptha v. N.L.Anand & Rajinder SinghRelied on¶47
Desh Bandhu Guptha v. N.L.Anand & Rajinder Singh [(1994) 1 SCC 131] · Who else cites this
4 provisions across 1 enactments
Lalitha Kumari
ASHA B.NAIR
Murali Suresh Nair
Ajith B.Nair
Anil K.Narendran
P.G. Ajithkumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
