Kerala High Court
Maria Financiers vs Sasikumar on 7 July, 2021
OP(C).1008/19 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
OP(C) NO. 1008 OF 2019
AGAINST THE ORDER/JUDGMENT IN OS 1110/2011 OF PRINCIPAL SUB
COURT,THRISSUR, THRISSUR
PETITIONER/S:
MARIA FINANCIERS,
KALLIATH ROYAL SQUARE BUILDING, THRISSUR, PALACE
ROAD, THRISSUR 680 020, REP BY ITS MANAGING PARTNER,
JOSE K FRANCIS, AGED 60, S/O. FRANCIS, KUTTIKKADAN
HOUSE, ARISTO ROAD ,EAST FORT P.O, THRISSUR DT.
BY ADVS.
K.R.ARUN KRISHNAN
SMT.DEEPA K.RADHAKRISHNAN
RESPONDENT/S:
1 SASIKUMAR,
S/O. VADAKOODU SARATHAMANI, THRIKUMARAKOODAM DESAM,
AYYATHOLE VILLAGE, THRISSUR.
2 VASANTHI,
AGED 46 YEARS
W/O. SASIKUMAR, VADAKOODU 680 002
THRIKUMARAKOODAM DESAM AYYANTHOLE VILLAGE, THRISSUR
680 002
R1 BY ADVS.
SRI.V.M.SYAM KUMAR
SMT.P.F.ROSY
SMT.KRIPA ELIZABETH MATHEWS
SMT.SNEHA RAJIV
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).1008/19 2
V.G.ARUN, J.
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OP.(C).1008 of 2019
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Dated this the 7th day of July, 2021
JUDGMENT
The suit, O.S.No.1110 of 2011 filed by the petitioner before the
Second Additional Sub Court, Thrissur for realisation of money was
decreed and defendants 1 and 2, the respondents herein, ordered to
pay Rs.8,62,162/- with interest at the rate of 6% per annum from the
date of suit till realisation. The petitioner sought realisation of the
amount by attachment and sale of the decree scheduled property.
Based on the draft sale proclamation execution court fixed the upset
price of the property at Rs.58 lakhs. The property scheduled is one-
third right of the 1st respondent over Rs.13.325 cents along with the
building therein, which is part and parcel of his family property.
Though the property was notified for sale four times, the sale did not
take place for want of bidders. The repeated request of the petitioner
to reduce the upset price went unheeded. The request made through
Exhibit P8 application also being rejected by Exhibit P9 order, holding
that no sufficient reason is made out for reducing the upset price
fixed after taking into consideration all relevant materials, this
original petition is filed.
2. Heard the learned counsel on either side.
3. Indisputably, in spite of the property was brought to sale
repeatedly and the sale has not materialised for want of bidders.
Being so, the execution court ought to have considered the request
for reduction of upset price, rather than taking an adamant stand that
no reduction is warranted, since the upset price was fixed after taking
into consideration all relevant materials. The Second proviso to Order
XXI Rule 66 makes it clear that the court is not required to enter its
own estimate of the value of the property in the proclamation of sale,
but should include the estimate if any, given by either or both of the
parties. The sale having been adjourned repeatedly and the decree
holder having sought reduction of the upset price, the court is bound
to consider the request, subject to the objection, if any raised, of the
judgment debtor. The impugned order having been issued without
indulging in such exercise, I am compelled to allow the original
petition.
In the result, the original petition is allowed. Exhibit P9 order is
set aside. The learned Sub Judge is directed to reconsider Exhibit P8
application and pass a reasoned order thereon, within one month of
receipt of a copy of this judgment.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX OF OP(C) 1008/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE DECREE DATED 20-06-2013
OF THE SECOND ADDITIONAL SUB COURT,
THRISSUR IN O.S NO. 1110/2011
EXHIBIT P2 TRUE COPY OF THE E.P NO. 233/2014 IN O.S
NO. 1110/2011 DATED 31-03-2014
EXHIBIT P3 TRUE COPY OF THE DRAFT SALE PROCLAMATION
SUBMITTED BEFORE THE COURT BELOW BY THE
PETITIONER/DECREE HOLDER.
EXHIBIT P4 TRUE COPY OF THE E.A NO. 25/2016 IN E.P
233/2014 IN O.S NO. 1110/2011 ON THE FILE
OF THE PRINCIPAL SUB COURT, THRISSUR DATD
06-01-2016
EXHIBIT P5 TRUE COPY OF THE ORDER IN E.A NO. 25/2016
IN E.P 233/2014 IN O.S NO. 1110/2011 ON
THE FILE OF THE PRINCIPAL SUB COURT,
THRISSUR DATED 23-06-2018.
EXHIBIT P6 TRUE COPY OF E.A NO. 785/2018 E.P 233/2014
IN O.S NO. 1110/2011 DATED 18-09-2018 ON
THE FILE OF THE PRINCIPAL SUB COURT,
THRISSUR DATED 10-09-2018
EXHIBIT P7 TRUE COPY OF THE ORDER PASSED BY THE
PRINCIPAL SUB COURT, THRISSUR DATED 18-09-
2018 IN E.A NO. 785/2018 IN E.P NO.
233/2014 IN O.S NO. 1110/2011
EXHIBIT P8 TRUE COPY OF E.A NO. 1110/2019 IN E.P
233/2014 IN O.S NO. 1110/2011 ON THE FILE
OF PRINCIPAL SUB COURT, THRISSUR DATED 30-
01-2019
EXHIBIT P9 TRUE COPY OF THE ORDER PASSED BY THE
PRINCIPAL SUB COURT, THRISSUR IN E.A NO.
110/2019 IN E.P 233/2014 IN O.S NO.
1110/2011 DATED 07-02-2019
EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS OF THE
PRINCIPAL SUB COURT, THRISSUR IN E.P
233/2014 IN O.S NO. 1110/2011 DATED 07-02-
2019.
