OP(C) Nos.2521/2021 & 610/2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
OP(C) NO. 610 OF 2022
AGAINST THE ORDER/JUDGMENT IN EP 62/2020 OF SUB COURT PALAKKAD
PETITIONER/DECREE HOLDER:
ABDUL SALIM
AGED 47 YEARS
S/O ISMAIL,
AGED 47 YEARS,
PALLAM,
MUTHALAMADA AMSOM DESOM,
CHITTUR THALUK,
PALAKKAD DISTRICT
678 507, PIN - 678507
BY ADVS.
BINOY VASUDEVAN
SREEJITH SREENATH
RESPONDENT/JUDGMENT DEBTOR:
CHELLAPPA AGED 66 YEARS S/O MUHAMMED IBRAHIM, AGED 66 YEARS, KAMBRACHALLA, MUTHALAMADA AMSOM DESOM CHITTUR THALUK, PALAKKAD DISTRICT 678 507, PIN - 678507 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.06.2022, ALONG WITH OP(C).2521/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) Nos.2521/2021 & 610/2022 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944 OP(C) NO. 2521 OF 2021 AGAINST THE ORDER/JUDGMENT IN EP 62/2020 IN OS 1/2015 OF SUB COURT, PALAKKAD PETITIONER/JUDGMENT DEBTOR IN EP NO.62/2020 IN O.S.1/2015:
CHELLAPPA, AGED 66 YEARS S/O. MUHAMMED IBRAHIM, RESIDING AT KAMBRATHCHALLA, MUTHALAMADA AMSOM DESOM, CHITTUR TALUK, PALAKKAD 678
507. BY ADVS.
PRAVEEN K. JOY E.S.SANEEJ M.P.UNNIKRISHNAN M.K.SAMYUKTHA N.ABHILASH T.A.JOY SANDRA S.KUMAR RESPONDENT/DECREE HOLDER IN E.A. IN E.P NO.62/2020 IN O.S1/2015:
ABDUL SALIM, AGED 47 YEARS S/O. ISMAIL, RESIDING AT PALLAM, MUTHALAMADA, AMSOM, DESOM, CHITTUR TALUK, PALAKKAD 678 507.
BY ADV BINOY VASUDEVAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.06.2022, ALONG WITH OP(C).610/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) Nos.2521/2021 & 610/2022 3 COMMON JUDGMENT As these original petitions are filed by the same parties to E.P.No.62/2020 in O.S.No.1/2015 of the Court of the Subordinate Judge, Palakkad, they are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per the status and the pleadings in O.P(C ) No.2521/2021.
OP(C)No.2521/2021
2. The petitioner, who is the judgment debtor in E.P.62/2020, has filed O.P (C)No.2521/2021 against the respondent, to set aside Ext.P5 sale notice passed by the Execution Court. The petitioner contends that the respondent has put the compromise decree passed in the above suit to execution. The petitioner is an aged and infirm person, and is suffering from a heart ailment. He is under severe financial difficulty. The petitioner has a OP(C) Nos.2521/2021 & 610/2022 4 property with road frontage,which would fetch more than Rs.1.5 crore. There is a building in the property having a plinth area of 2000 sq.ft . If the building is excluded, only two cents on the western side need be sold, which would fetch an amount of Rs.30 lakh and is sufficient to clear the decree debt. The petitioner had filed E.A. 152/2021 in E.P.No.62/2020 pointing out all the above aspects, requested the court below to apply the principles under Order XXI, Rule 64 of the Code of Civil Procedure, and recall the sale proceeding, and also to direct a Village Officer to identify two cents of the plaint property on the western side. An Advocate Commissioner was appointed to conduct a local inspection, who has filed Ext.P4 commission report. Nevertheless, the Execution Court without adverting to the above application and the report of the Advocate Commissioner, has passed impugned Ext.P5 order by including the house of the petitioner. Ext.P5 is illegal and arbitrary and is liable to be set aside. Hence the original petition.
OP(C) Nos.2521/2021 & 610/2022 5 OP(C) No.610/2022
3. The respondent in O.P.(C)610/2022 has filed O.P(C) 610/2022, to direct the court below to consider and dispose of E.P.No.62/2020 within a time frame.
4. The points that arise for consideration in these original petitions are:
(i) Whether Ext.P5 order is erroneous or wrong? and
(ii) Whether E.P. 62/2020 is to be disposed of within a time frame?
Point No.(i)
5. Admittedly,the petitioner had filed E.A No.152/2021 in the execution petition, to apply the principles under Order XXI, Rule 64 of the Code of Civil Procedure and recall the sale proceeding, so that only a portion of the property need to be sold to satisfy the decree debt. Thereafter, the petitioner had approached this Court and filed O.P(C).No.884/2021. This Court by Ext.P2 judgment directed the Execution Court to consider and dispose of the above OP(C) Nos.2521/2021 & 610/2022 6 application within a period of six months from 30.6.2021. Then, on the request of the petitioner, an Advocate Commissioner was appointed and Ext.P4 report was placed before the Execution Court.
6. Nevertheless, on a perusal of Ext.P5 sale notice, there is nothing to show that the court below has adverted to the application filed by the petitioner or Ext.P4 commission report. In the above background, I am of the firm view that Ext.P5 sale notice is erroneous, is liable to be set aside, and the matter has to be reconsidered afresh by the Execution Court.
Point No.(ii)
7. The execution petition is of the year 2020. Thus, I leave it to the direction of the Execution Court to decide whether the execution petition has to be given due precedence than the pending cases of the same category. OP(C) Nos.2521/2021 & 610/2022 7 In the result, I allow the original petitions in the following manner:
(i) Ext.P5 sale notice is set aside.
(ii) The Execution Court is directed to consider E.A No.152/2021, after adverting to Ext.P4 commission report, in accordance with law and pass orders thereon, as expeditiously as possible.
(iii) The Execution Court shall give credit to the amount of Rs.5 lakh that has been deposited by the petitioner, pursuant to the order dated 23.12.2021 passed by this Court.
(iv) The Execution Court shall decide whether the execution petition has to be given due precedence and considered before the other older pending cases of the same category.
ma/14.6.2022 Sd/- C.S.DIAS, JUDGE OP(C) Nos.2521/2021 & 610/2022 8 APPENDIX OF OP(C) 2521/2021 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE EP 62/2020 OF SUB COURT, PALAKKAD.
Exhibit P2 THE TRUE COPY OF THE JUDGMENT IN OPC 884/2021 DATED 30.6.2021.
Exhibit P3 THE TRUE COPY OF THE E- COURT DAILY STATUS OF EP NO. 62/2020 IN OS 1/2015 ON THE FILES OF SUBORDINATE JUDGE COURT, PALAKKAD DATED 16.9.2021.
Exhibit P4 THE TRUE COPY OF THE REPORT FILED BY THE ADVOCATE COMMISSIONER DATED 15.11.2021 IN EP NO. 62/2020 IN OS 1/2015 ON THE FILES OF SUBORDINATE JUDGE COURT, PALAKKAD. Exhibit P5 THE TRUE COPY OF THE SALE NOTICE UNDER ORDER 21 RULE 66 ISSUED BY THE SUB COURT, PALAKKAD, IN EP NO. 62/2020 IN OS 1/22015 DATED 14.12.2021.
Exhibit P6 THE TRUE COPY OF THE MEMO FILED BY THE COUNSEL FOR THE JUDGMENT DEBTOR BEFORE THE PRINCIPAL SUB COURT, PALAKKAD DATED 31.12.2021.
Exhibit P7 THE TRUE COPY OF THE MEMO FILED BY THE COUNSEL FOR THE JUDGMENT DEBTOR BEFORE THE PRINCIPAL SUB COURT, PALAKKAD DATED 31.1.2022.
Exhibit P8 THE TRUE COPY OF THE CHALLAN APPLICATION FILED BY THE COUNSEL FOR THE JUDGMENT DEBTOR BEFORE THE PRINCIPAL SUB COURT, PALAKKAD DATED 31.1.2022.
OP(C) Nos.2521/2021 & 610/2022 9 APPENDIX OF OP(C) 610/2022 PETITIONER EXHIBITS Exhibit P-1 TRUE COPY OF THE AWARD DATED 08-11-2018 Exhibit P-1 (a) TRUE COPY OF THE JOINT STATEMENT FILED BETWEEN THE PARTIES ON 08-11-2018 BEFORE THE LOK ADALATH Exhibit P-2 TRUE COPY OF E.P.NO.62/2020 IN O.S.NO.1/2015 ON THE FILE OF THE SUB COURT, PALAKKAD Exhibit P-3 TRUE COPY OF E.A.NO.152/2021 IN E.P.NO.62/2000 IN O.S.NO.1/2015 Exhibit P-4 TRUE COPY OF THE JUDGMENT DATED 30-06-2021 IN O.P.(C) NO.884 OF 2021 Exhibit P-5 TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 15-11-2021 Exhibit P-6 TRUE COPY OF THE PROCLAMATION OF SALE UNDER ORDER 21 RULE 66 OF THE CODE.
Exhibit P-7 TRUE COPY OF THE INTERIM ORDER DATED 23-12-
2021 IN O.P.(C) NO.2521/2021