IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
O.P.(C) NO.492 OF 2022
E.P.NO.41 OF 2019 IN O.S. NO.470/2013 ON THE FILE OF PRINCIPAL
MUNSIFF COURT, KOLLAM.
PETITIONERS/JUDGMENT DEBTORS/DEFENDANT:
1 BABUMON,
AGED 44 YEARS, S/O. CHELLAPPAN,
VALUTHUNDIL HOUSE,
MARAVOOR CHERRY, EAST KALLADA P.O.,
EAST KALLADA VILLAGE, KOLLAM DISTRICT, PIN-691 502.
2 MINIMOL,
AGED 41 YEARS, W/O. BIJUMON,
VALUTHUNDIL HOUSE,
MARAVOOR CHERRY, EAST KALLADA P.O.,
EAST KALLADA VILLAGE, KOLLAM DISTRICT, PIN-691 502.
BY ADVS.
M.T.SURESHKUMAR
R.RENJITH
SREELAKSHMI SABU
MANJUSHA K
RESPONDENT/DECREE HOLDER/PLAINTIFF:
ANIL,
AGED 54 YEARS, S/O. RAGHAVAN,
RESIDING AT ANUSREE, SARAYU NAGAR 61A,
ASRAMAM CHERRY, KOLLAM EAST VILLAGE,
KOLLAM TALUK, KOLLAM DISTRICT, PIN-691 008.
BY ADV. C.R. JAYAKUMAR
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.06.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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O.P.(C) NO.492 OF 2022
C.S. DIAS, J.
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O.P.(C) No.492 of 2022
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Dated this the 9th day of June, 2022
JUDGMENT
The original petition is filed, to set aside Ext.P4 order passed by the court of the Principal Munsiff's, Kollam in E.P.No.41/2019 in O.S.No.470/2013.
2. The concise case of the petitioners in the memorandum of original petition is that, they are the judgment debtors in the above execution petition, filed by the respondent. The respondent had instituted Ext.P1 plaint seeking a decree for recovery of money. In a mediation proceeding, the parties settled their disputes as per conditions in the memorandum of settlement. The trial court, by Ext.P3 judgment and decree, decreed the suit on 09.09.2015. The petitioners are in joint possession and ownership of 1.60 Ares of property in East Kallada Village. The petitioners are daily wage workers. The original transaction was only for -3- O.P.(C) NO.492 OF 2022 Rs.50,000/-. They have already paid Rs.85,000/- as per the decree. The petitioners were in the dark regarding the execution proceeding. It was only when they received Ext.P4 notice, that they became unaware of the execution petition. The executability of the decree is highly questionable. Even though the petitioners filed Ext.P5 application to stay the execution proceeding, the same has not been considered by the execution court. Hence the original petition.
3. Heard Smt. Sreelakshmi Sabu, the learned counsel appearing for the petitioners and Sri. C.R. Jayakumar, the learned counsel appearing for the respondent.
4. The point out that arises for consideration in this original petition is whether there is any illegality or impropriety in Ext.P4 order passed by the execution court.
5. It is the specific case of the petitioners that they have not received any notice in the execution -4- O.P.(C) NO.492 OF 2022 petition. On a perusal of Ext.P4, it can be gathered that the execution court has fixed the upset price of the execution schedule property at Rs.75,000/-. Admittedly, the property has an extent of 1.60 Ares. There is no material to substantiate the manner in which the upset price was fixed.
6. The second proviso to Rule 66(2) (b) of Order XXI of the Code of Civil Procedure mandates that the estimate of the value of the property put for sale shall include the estimate given by either or both the parties.
7. There is nothing on record to show that either party has given any estimate as to the value of the property. Moreover, there is nothing on record to prove that the petitioners were served with notice in the execution petition. In the above legal and factual background, I am of the firm view to do complete justice that the petitioners should be given an opportunity to file their written objection to the execution petition and contest the proceeding on its merits. Hence I am -5- O.P.(C) NO.492 OF 2022 inclined to exercise the supervisory powers of this Court as enshrined under Article 227 of the Constitution of India andset aside Ext.P4 order.
In the result, the original petition is allowed in the following manner:
i) Ext.P4 order shall set aside.
ii) The petitioners shall produce a copy of this judgment before the execution court.
iii) The petitioners shall mark their appearance through their counsel before the execution court on 27.06.2022.
iv) The petitioners' may file their written objection to the execution petition within one month from 27.06.2022.
v) The execution court shall consider the written objection and decide the execution petition in accordance with law.
Sd/-
C.S. DIAS JUDGE bpr -6- O.P.(C) NO.492 OF 2022 APPENDIX OF OP(C) 492/2022 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 05.06.2013 AS O.S. NO.470/2013 ON THE FILE OF MUNSIFF'S COURT, KOLLAM.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS ON 06.08.2014 IN O.S. NO.470/2013 ON THE FILE OF MUNSIFF'S COURT, KOLLAM.
EXHIBIT P3 THE TRUE COPY OF THE JUDGMENT AND DECREE ALONG THE MEMORANDUM OF AGREEMENT UNDER SECTION 18 AND OF THE CPC READ WITH RULE 24 AND 25 OF THE CIVIL PROCEDURE (MEDITATION) RULES, 2005 DATED 09.09.2015. EXHIBIT P4 TRUE COPY OF SALE PROCLAMATION DATED 26.02.2022 IN EP NO.41 OF 2019 IN O.S. NO. 470/2013 ON THE FILE OF PRINCIPAL MUNSIFF COURT, KOLLAM.
EXHIBIT P5 TRUE COPY OF THE EA NO. OF 2022 IN EP NO.41 OF 2019 IN O.S. NO.470/2013 ON THE FILE OF PRINCIPAL MUNSIFF COURT, KOLLAM DATED 09.03.2022.