M.N. Chandran vs K.M. Muhammad
2021 Latest Caselaw 14620 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MRS. JUSTICE M.R.ANITHA
   WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                    OP(C) NO. 1858 OF 2016
       OS 115/1999 OF SUB COURT, PERUMBAVOOR, ERNAKULAM
PETITIONER/JUDGMENT DEBTOR

          M.N. CHANDRAN
          AGED 60 YEARS
          S/O.NARAYANAN, AGED 60 YEARS, MUKILACKAL (H),
          KANINADU KARA, PUTHENCRUZ VILLAGE, KUNNATHUNADU
          TALUK, KANINADU P.O., ERNAKULAM.
          BY ADVS.
          SRI.G.KRISHNAKUMAR
          SMT.M.L.REMYA


RESPONDENT/DECREE HOLDER

          K.M. MUHAMMED,
          S/O. KOCHUMUHAMMED, KARIKKUZHIYIL (H), VAZHAPPILLY
          KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA, PIN-
          682028.
          BY ADVS.
          SRI.MATHEW CHERIAN
          SRI.H.SIVARAMAN



     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 7.7.2021, THE
COURT ON 14.07.2021 DELIVERED THE FOLLOWING:
 OPC 1858/2016
                                      2



                                JUDGMENT

Dated : 14th July, 2021

1. Petitioner is the judgment-debtor in E.P.60/2015

in O.S.115/1999 on the file of Sub Court,

Perumbavoor. This O.P has been filed aggrieved by

the order dated 20.7.2016 of the Sub Judge

ordering the sale of the property described in the

draft sale proclamation.

2. According to the petitioner, a specific contention

that the petitioner is an agriculturist entitled

for benefit under Sec.60(c) of the Code of Civil

Procedure (hereinafter referred as 'the Code') has

been specifically raised in the objection but it

has not been considered properly by the Execution

Court. It is also his contention that the property

would fetch value of Rs.5 Lakhs per cent, but

without any basis the Court accepted the valuation

shown in the sale proclamation filed by the decree

holder. A part of the property would have been

sufficient to satisfy the decree but the entire

property was proclaimed to be sold. The procedures OPC 1858/2016

prescribed under Rule 330 of the Civil Rules of

Practice also not complied since no encumbrance

certificate has been produced by the

respondent/decree holder. There is a two storied

concrete building in the scheduled property and

the value of it has not been considered while

accepting the value shown in the proclamation. In

short, according to the learned counsel, the

impugned order ordering proclamation and sale of

the property has to be set aside.

3. The learned counsel for the respondent/decree

holder, on the other hand, would contend that all

the objections raised by the petitioner has been

answered by the learned Sub Judge and no evidence

has been adduced by the petitioner to prove any of

the contentions. It is also his contention that in

spite of passing a decree for realization of

money, no payment has been made and from 2016

onwards the matter is pending without making any

payment and hence according to him, there is no

merit in the original petition.

4. Heard both sides. Lower court records in OPC 1858/2016

E.P.60/2015 was called for and both sides were

heard.

5. Based on the above, the following points arise for

consideration:

(i) Whether the benefit claimed under Sec.60(c) of

the Code has not been properly considered.

(ii) Whether value of the property shown in the

proclamation is very low

(iii) Whether only part of property would have

been sufficient to satisfy the decree debt.

6. Point No.(i) - The petitioner/judgment debtor

has got a specific contention that he is an

agriculturist and an agricultural labourer. Hence

the property cannot be sold in execution of the

decree as per Sec.60(c) of the Code of Civil

Procedure,1908(hereinafter be stated as Code). It

is stated in the impugned order that the

petitioner has sought exemption under Sec.60(c) of

the Code since the land is an agricultural land.

But from the valuation certificate produced by the

decree holder the land sought to be sold is a

residential plot and it is further found that OPC 1858/2016

though the property is found attached already, the

attachment order was not challenged. It appears

that the reasoning of the learned Sub Judge is

without properly understanding the scope of

Sec.60(c) of the Code. It is apposite in this

context to extract Sec.60(c) which reads as

follows :

Property liable to attachment and sale in execution of decree -

Provided that the following particulars shall not be liable to such attachment or sale, namely :-

(a).............

(b).............

(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer or a domestic servant and occupied by him.

7. Sec.60(c) exempts the houses and other buildings

and land immediately appurtenant there to and are

necessary for the enjoyment of an agriculturist.

The term 'agriculturist' is not defined in the

Code.

OPC 1858/2016

8. This Court had occasion to consider this aspect in

Mathew v. Bank of Cochin Ltd and Others (1982 KLT

274 = 1982 KHC 69). In that while considering

Sec.60(c) of the Code, it has been held that

agriculturist is a person depending for his

maintenance on tilling soil and he is unable to

maintain himself otherwise.

9. In Pathmavathi v. Sheeja (2016 (1) KLT 560 = ILR

2016 (2) Ker. 127) a Division Bench of this Court

had occasion to consider the scope of Sec.60(c) of

the Code and the duty of the Court while such a

defence is taken up by a judgment-debtor. It has

been held that every Court, while considering a

claim under Proviso to Sec.60(c), should be

cautious enough to evaluate the evidence and is

duty bound to uphold exceptions under the main

provision and thereby protect avowed object of the

law makers.

10. In this case the petitioner raised a specific

contention in the objection that he is an

agriculturist entitled for the benefit of

Sec.60(c) of the Code. But the learned Sub Judge OPC 1858/2016

has refused the benefit stating that the valuation

certificate produced by the decree holder showed

that it is a residential plot. So the fact whether

the house in question which is sought to be sold

is that of an agriculturist has not been

considered and a finding in that regard has not

been entered into. So the impugned order is not

sustainable on that ground itself.

11. Point:No.(ii) - Petitioner has also got a

strong objection with regard to the valuation of

property. The learned counsel for the petitioner

brought my attention to Raman alias Raman Kunju v.

Kudavechoor S.N.D.P.Sakhayogam (1970 KHC 1)

wherein while dealing with Order 21 Rule 66(2) it

was held that in cases where considerable

disparity is there between the value given by the

judgment-debtor and the value given by the decree

holder, the Court has to specify every other thing

which will enable the purchaser to judge the

nature and value of property and the enquiry

should not be a detailed one but an independent

enquiry so as to determine the reasonable value. OPC 1858/2016

It is also held that mode of enquiry is left to

the executing Court.

12. This Court in K.V.Thomas v. Malabar Industrial

Co.Ltd. [1962 KLT 315] has held that while

proceeding against the property of a judgment-

debtor for compulsory sale in execution, law and

fairness require the Court to ensure that the

judgment-debtor is not unduly harassed in his

misfortune and to adopt all reasonable means to

secure a reasonable price for the property at the

Court sale.

13. In Chandradas K.P. v. A. Nizar and Ors. [2009

(3) KHC 841 : ILR 2009 (3) Ker.763] it has been

held that it is the obligation of the Court to

ensure that the judgment-debtor whose property is

being sold is entitled to a fairly accurate

description of his property so as to secure the

presence of such class of bidders who would make

fair bids of the property having regard to the

size, location and other features of the property.

14. In this case according to the petitioner

property would fetch a value of Rs.5 Lakhs per OPC 1858/2016

cent. The Execution Court followed the valuation

shown in the valuation certificate and fixed the

value of property at Rs.1,15,000/- per Are and it

is further found that the Execution Petition has

been filed for Rs.6,71,275/- and hence it was

found that the property described in the draft

sale proclamation is liable to be sold. As rightly

contended by the learned counsel, the value of the

house in the property has not been taken into

account at all. So also even though it is stated

that if the judgment-debtor has got any objection

with regard to the valuation, he can suggest the

value and proclamation can be made including that

value also and that the Court has no duty to fix

the upset price, Without any direction to

incorporate the value of the property made by the

petitioner/judgment-debtor the Execution Court has

directed to take steps for proclamation and sale.

There is no direction in the order to incorporate

the valuation of the judgment-debtor in the

proclamation. Sale proclamation enclosed with the

records would go to show that the market value OPC 1858/2016

alone has been shown as Rs.8 Lakhs. The value of

the property shown in the objection as Rs.5 Lakhs

per cent and further objection that the building

will fetch considerable value also have not been

taken into account. It is the specific case of the

petitioner that the property is facing a public

road on the south. Sale proclamation fortifies

that contention. So it appears that sale of the

property was ordered to be sold without proper

application of mind by the Execution Court.

15. Point No.(iii) - The learned counsel for the

petitioner has also got objection with regard to

the direction given to sell the entire property .

It is the duty of the executing Court to consider

whether sale of a part of property would be

sufficient to satisfy the decree debt. In

Narasayya v. Subba Rao and Another (AIR 1990 SC

119 = 1990 KHC 221) it is held that the execution

sale should ensure that only the property

sufficient to satisfy the decree alone should he

sold and it is a mandate of the legislation and is

not a mere discretion of the Court. In Sukumaran OPC 1858/2016

K.A. v. Permanent Benefit Fund ltd (2011 (2) KHC

955 = 2011 (3) KLT 53), the learned Single Judge

of this Court held that the Court should ensure

that only the property sufficient to satisfy the

decree alone should be sold.

16. In the present case even the sale proclamation

would show the value of the property as Rs.8 Lakhs

though the decree debt is only Rs.6,88,000/-. But

the entire property was directed to be proclaimed

for sale.

17. The petitioner would next content about the

non-compliance of Rule 330 of Civil Rules of

Practice, since no affidavit as contemplated there

in has been filed and encumbrance certificate

covering a period of 12 years prior to the date of

attachment is also not produced. On perusing the

lower court records in the above E.P encumbrance

certificate from 1.1.1998 to 18.2.2016 is seen

produced. Copy of the attachment report of Ameen

would show that attachment was effected on

29.7.99. But no affidavit as provided in the Rule

has been filed.

OPC 1858/2016

18. Chandradas K.P. v. Nizar and Others (2009 (3)

KHC 841) is relied on by the learned counsel

wherein it has been held that a decree holder is

bound to file in Court an affidavit by himself or

by some other person acquainted with the property

giving the particulars prescribed under O.21 R.66

CPC. It is also found therein that there is

infraction of R.330 of the Kerala Civil Rules of

Practice as per which the decree holder was bound

to file in Court an affidavit. Same is the

position here.

19. In effect on an evaluation of the impugned

order and the proclamation of sale and the

connected records, it can reasonably be concluded

that the impugned order passed by the learned Sub

Judge, is without properly evaluating the

contentions raised in the objection filed by the

petitioner and hence caused miscarriage of justice

to the petitioner/judgment-debtor and hence it is

liable to be set aside.

20. In the result, Original Petition allowed and

the impugned order is set aside. The Execution OPC 1858/2016

Court is directed to conduct an enquiry with due

notice to both sides and pass fresh orders after

hearing both sides not later than 3 months from

the date of receipt of copy of this order.

Sd/-

M.R.ANITHA, Judge

Mrcs/8.7.

OPC 1858/2016

APPENDIX OF OP(C) 1858/2016

EXHIBITS

EXHIBIT P1 TRUE COPY OF THE EP 60/2015 IN OS NO.

115/1999 ON THE FILES OF SUB COURT, PERUMBAVOOR.

EXHIBIT P2 TRUE COPY OF THE DRAFT SALE PROCLAMATION IN EXHIBIT P1 EP.

EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED TO EXHIBIT P2 DRAFT SALE PROCLAMATION. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 20-07-2016 IN E.P.NO. 60/2015 IN OS.NO. 115/1999 ON THE FILES OF THE SUB COURT, PERUMBAVOOR.

TRUE COPY