Allowed

Shahida v. Vijaya Aharodyama Sivapura

Kerala HC12 Sept 2023OP(C)/1147/2019

Case brief

AI extract

What is this about?

In this Original Civil Petition, the High Court of Kerala allowed the writ petition filed by the judgment debtor seeking to set aside orders directing the sale of his entire property. The Court held that the lower court failed to address valid objections regarding partial sale sufficiency and valuation, violating natural justice principles.

What did the court decide?

Set aside Exts.P5 and P6 orders; direction to the Munsiff to reconsider objections and take fresh action within three months.

Shahida Vs Vijaya Aharodyama Sivapura — Execution and Attachment | Kerala HC (2023)

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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 DEVAN RAMACHANDRAN

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TUESDAY, THE 12^TH DAY OF SEPTEMBER 2023 / 21ST BHADRA, 1945

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OP(C) NO. 1147 OF 2019

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IN EP NO.68/2016ON THE FILE OF MUNSIFF COURT, THALIPARAMBA IN O.S.NO.29/2009 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, KARKALA, KARNATAKA STATE

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PETITIONER/RESPONDENT NO.3:

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SHAHIDA, AGED 37 YEARS, W/O.K.RAZAK, NEAR BHARAT MASJID, NADUVIL.P.O, NEW NADUVIL AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT-670582

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BY ADVS. V.T.MADHAVANUNNI SRI.V.A.SATHEESH

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RESPONDENT/PETITIONER & RESPONDENT NO.1, 2 & 4:

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1 M/S NIJAYA AHARODYAMA SIVAPURA, REPRESENTED BY THE ACCOUNTANT/POWER OF ATTORNEY HOLDER, UMESH NAYAK, 45 YEARS, S/O.SUBHANNA NAYAK, SIVAPURA VILLAGE, KARKKALA TALUK, UDUPPI DISTRICT, KARNATAKA STATE.

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2 M/S.TRAVANCORE TRADING COMPANY, REPRESENTED BY ITS MANAGING PARTNER, C.ARIFA, NEAR PERUVALATHUPARAMBA PETROL PUMP,PERUVALATHUPARAMBA.P.O, IRIKKUR AMSOM, KANNUR DISTRICT-670593.

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3 C.ARIFA,AGED 32 YEARS, MANAGING PARTNER OF M/S.TRAVANCORE TRADING COMPANY NEAR PERUVALATHUPARAMBA PETROL PUMP, PERUVALATHUPARAMBA.P.O, IRIKKUR AMSOM, KANNUR DISTRICT-670593.

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4 K.MUHAMMED ASHRAF,AGED 44 YEARSS/O.K.V.ABOOTTI HAJI, MANAGER, M/S. TRAVANCORE TRADING COMPANY, K.V.A.COMPEX, SREEKANDAPURAM.P.O, SREEKANDAPURAM AMSOM, KANNUR DISTRICT-670631.

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BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.V.T.LITHA SMT.K.R.MONISHA

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OP(C) NO. 1147 OF 2019

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) NO. 1147 OF 2019

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JUDGMENT

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The petitioner impugns Exts.P5 and P6 orders, through which, their properties have been put to sale in execution of the decree in O.S.No. 29/2009, on the files of the Munsiff's Court, Thaliparamba. They say that that they have already preferred Ext.P4 objections against the Execution Petition, wherein, it has been specifically mentioned that only a small portion of the property need be put to sale to obtain the decree debt; but that, without considering any of this, the Execution Court fixed the upset price of Rs.4,00,000/- for the entire extent and ordered its sale on a particular day. They say that, therefore, Ext.P5 - which orders the sale; and Ext.P6 - fixing a fresh date for sale because the Execution Petitioner did not remit the 'Batta' in time, are both illegal and unlawful.

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The afore submissions of Sri. V.T.Madhavan Unni – learned counsel for the petitioner, were answered by Sri.Philip T.Varghese – learned counsel for the 1^st respondent, arguing that this Original Petition has been filed only to delay the Execution Proceedings and for no other purpose. He submitted that even though the petitioner raised objections as

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OP(C) NO. 1147 OF 2019

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afore, he did not produce any substantiating material in support; and therefore that the Trial Court had no other option, but to issue Exts.P5 and P6 orders. He thus prayed that this Original Petition be dismissed.

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I am afraid that I cannot find favour with the afore submissions of Sri.Philip T. Varghese because, as rightly argued by Sri.V.T.Madhavan Unni, Ext.P4 objections clearly state as under:

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“The Draft Sale Proclamation is not as per law and the same is liable to be dismissed. The Draft Sale Proclamation copy issued to the respondents is in a printed form in which all the blank columns are unfilled. The Draft Sale Proclamation is not supported by an affidavit or petition as prescribed under law. The respondents are herewith producing the said Draft Sale Proclamation and notice served on them.

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The petition schedule properties will fetch more than Rs. 75,000/- per cent. The entire property shown in the petition schedule need not be sold for realizing the decree amount. A very small portion of either of the 2 items of the property will be sufficient to meet the decree amount. The market value of the item No.1 of the property (1½ Acres) shown by the petitioner is only Rs.1,50,000/-. The market value of the item No.2 of the property (2½ Acres) shown by the petitioner is only Rs.2,50,000/- Valuation Certificate of the properties are not produced by the petitioner.

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OP(C) NO. 1147 OF 2019

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Therefore it is most humbly prayed that this Hon'ble Court may be pleased to record and reject the Draft Sale Proclamation produced in the above matter.”

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This court is not saying at this stage that the assertions of the petitioner are correct, but it is up to the Execution Court to consider the same in its proper perspective. However, when one reads Exts.P5 and P6, it is clear that none of the objections of the petitioner have been touched upon on its merits, but that said Court has gone ahead to fix the upset price of Rs.4,00,000/- for the entire property and to order its sale. It is, therefore, needless to expatiate that Ext.P5 cannot find favour with this Court, nor can Ext.P6 - which only fixes another date for the same.

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I am further persuaded to find in favour of the petitioner because, both Exts.P5 and P6 are issued in the year 2019 and the ground realities with respect to the market prices of the property must have been substantially altered by this time.

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In the afore circumstances, I allow this Writ Petition and set aside Exts.P5 and P6; with a consequential direction to the learned Munsiff, Thaliparamba, to reconsider the objections of the petitioner against the Execution Petition, leading to appropriate fresh action in terms of law, after

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OP(C) NO. 1147 OF 2019

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affording necessary opportunities to both sides. This shall be done as expeditiously as is possible, but not later than three

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

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Sd/- DEVAN RAMACHANDRAN, JUDGE

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lsn

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OP(C) NO. 1147 OF 2019

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APPENDIX OF OP(C) 1147/2019

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PETITIONER EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE PETITION IN E.P.NO.68/2016 ON THE FILE OF MUNSIFF COURT, TALIPARAMBA
EXHIBIT P2	TRUE COPY OF THE COUNTER FILED BY THE PETITIONER AND RESPONDENT NO.2 TO 4 IN E.P.NO.68/2016 ON THE FILE OF MUNSIFF COURT, TALIPARAMBA
EXHIBIT P3	TRUE COPY OF THE DRAFT SALE PROCLAMATION PRODUCED BY THE RESPONDENT NO.1 IN E.P.NO.68/2016 ON THE FILE OF MUNSIFF COURT, TALIPARAMBA.
EXHIBIT P4	TRUE COPY OF THE OBJECTION TO THE DRAFT SALE PROCLAMATION FILED BY THE PETITION AND RESPONDENT NO.2 TO 4 IN E.P.NO.68/2016 ON THE FILE OF MUNSIFF COURT, TALIPARAMBA
EXHIBIT P5	TRUE COPY OF THE ORDER PASSED IN E.P.NO.68/2016 ON THE FILE OF MUNSIFF COURT, TALIPARAMBA DATED 19/02/2019.
EXHIBIT P6	TRUE COPY OF THE ORDER PASSED IN E.P.NO.68/2016 ON THE FILE OF MUNSIFF COURT, TALIPARAMBA DATED 8/03/2019

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RESPONDENTS EXHIBITS: NIL

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TRUE COPY

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P.A. TO JUDGE

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LSN

Shahida v. Vijaya Aharodyama Sivapura

Case brief

What is this about?

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Shahida v. Vijaya Aharodyama Sivapura

Case brief

What is this about?

What did the court decide?

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