Kerala High Court
Sivan vs Ignatious on 16 July, 2021
OP(C).2665/19 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 16TH DAY OF JULY 2021 / 25TH ASHADHA, 1943
OP(C) NO. 2665 OF 2019
AGAINST THE ORDER/JUDGMENT IN OS 100/2012 OF II ADDITIONAL SUB
COURT,THRISSUR, THRISSUR
PETITIONER/S:
SIVAN
AGED 57 YEARS
S/O.KATHANAMPARMBIL RAJAN, ETTUMUNA DESOM, URAKAM
VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT
BY ADV RAJESH CHAKYAT
RESPONDENT/S:
IGNATIOUS
AGED 57 YEARS
S/O.MALIYEKKAL CHEENATH JOSE, CHERP VILLAGE AND
DESOM, THRISSUR TALUK, THRISSUR DISTRICT-680301
BY ADVS.
SRI.SHONE JOHNSON
SRI.E.M.SAJAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.07.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).2665/19 2
V.G.ARUN, J.
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O.P(C).No. 2665 of 2019
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Dated this the 16th day of July, 2021
JUDGMENT
The challenge in this original petition is against Exhibit P5 order
by which the execution court fixed the upset price for the immovable
property at Rs.4,00,000/-. The contention is that the property being
brought up for sale is having an extent of 27.49 cents including a
residential house with plinth area of around 2000 sqft. It is pointed out
that even in Exhibit P3 draft sale proclamation, the upset price was
shown as Rs.25,00,000/-. The petitioner had filed Exhibit P4 objection
stating that the property is having more value than what was shown
in the draft sale proclamation.
2. The decree holder having shown the value at Rs.25,00,000/-
and the petitioner having raised an objection saying that value is even
more, the execution court went wrong in fixing the upset price at
Rs.4,00,000/-, without assigning any reason. Moreover, as per the
second proviso to Order XXI Rule 66(2), the court is not required to
enter its own estimate of the value of the property in the
proclamation. In such circumstances, the challenge against Exhibit P5
has to be sustained, since it appears that the upset price was fixed
without taking into consideration all aspects.
In the result, Exhibit P5 is set aside and the Second Additional
Sub Judge, Thrissur is directed to re-fix the upset price in accordance
with the procedure prescribed in Order XXI Rule 66.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX OF OP(C) 2665/2019
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE SALE AGREEMENT DATED
03.01.2011
EXHIBIT P2 A TRUE COPY OF THE EXECUTION PETITION IN
E.P.NO.239/2017
EXHIBIT P3 A TRUE COPY OF THE DRAFT SALE PROCLAMATION
FILED B THE DECREE HOLDER DATED 22.05.2017
EXHIBIT P4 A TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER DATED 01.06.2019
EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 16.07.2019
IN E.P.NO.239/2017 IN OS NO.100/2012
