Kerala High Court
Shamsudeen Haji vs Fathima on 5 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942
OP(C).No.406 OF 2021
AGAINST THE ORDER DTD 19.1.2021 IN EA 629/2020 IN EP
119/2018 IN OS 1626/2011 OF II ADDITIONAL SUB COURT,THRISSUR
PETITIONER/PETITIONER/JUDGMENT DEBTOR/1ST DEFENDANT:
SHAMSUDEEN HAJI, AGED 49 YEARS
S/O.SAIDALI, EARACHAMVEETIL, VENKIDANGU,
CHAVAKKAD, THRISSUR-680510, REPRESENTED BY POWER
OF ATTORNEY HOLDER, NIMESH, AGED 42 YEARS, S/O.
SOMAN, PARADI HOUSE, KOORKKANCHERY VILLAGE,
KOORKKANCHERRY P.O., THRISSUR TALUK, THRISSUR
DISTRICT-680007.
BY ADV. SRI.V.A.VINOD
RESPONDENTS/RESPONDENTS/DECREE HOLDERS/PLAINTIFF 2 TO 5:
1 FATHIMA
AGED 60 YEARS
W/O. LATE KASIM HAJI, MUSLIYAM VEETTIL, PALAYUR
DESOM, GURUVAYOOR, CHAVAKKAD-680506.
2 JABEERA ALIMON,
AGED 43 YEARS
W/O. ALIMON, ARAKKAVEETTIL HOUSE, E.T.S. ROAD,
HARITHA NAGAR, VADANAPALLY, THRISSUR -680614.
3 AREENA GAFOOR,
AGED 38 YEARS
W/O. ABDUL GAFOOR, VALIYAKATHU HOUSE, VALAPPAD
P.O., THRISSUR-680567.
O.P.(C)No.406 of 2021
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4 FASNA HARIS,
AGED 31 YEARS
W/O. HARIS, ARAKKAVEETTIL HOUSE,
GANESHAMANGALAM, VADANAPALLY P.O., THRISSUR-
680614.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
05.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.406 of 2021
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Dated this the 5th day of March, 2021
J U D G M E N T
The challenge in this original petition filed
by the petitioner/judgment debtor is as to Ext.P9
order by which his application for deputing an
Advocate Commissioner was dismissed.
2. An ex parte decree for money was passed
against the petitioner and in the course of the
execution of the same, the petitioner sought to
depute an Advocate Commissioner to ascertain some
of the matters stated in E.A.No.629/2020. It was
contended that the market value of the property as
well as the identity of property were required to
be ascertained. The decree holder filed objection.
After hearing the parties, the court below has
taken a view that market value is a matter to be
proved by production of the necessary documents,
for which, deputation of Advocate Commissioner was
O.P.(C)No.406 of 2021
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quite unnecessary. With respect to the question of
identity raised also, the court below found no
substance in the contention raised by the
petitioner.
3. Learned counsel for the petitioner, to a
query put by this Court, submits that the
petitioner is not holding any other properties in
his ownership adjacent to the properties in
question. In that event, I fail to understand as to
how question of identity could become a relevant
issue here. The market value of property is to be
substantiated by furnishing documents for which a
local inspection by Advocate Commissioner is quite
necessary. When the learned counsel was confronted
with this position, he submitted that he would be
satisfied if he is given an opportunity to produce
necessary documents to prove market value of the
property. I am satisfied from the contentions
O.P.(C)No.406 of 2021
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raised before me as well as the reasons assigned
by the court below that the impugned order does not
suffer from any irregularity or illegality.
In the result, the original petition fails and
it is dismissed. It is made clear that the court
below shall give the petitioner/judgment debtor an
opportunity to produce requisite documents proving
the market value of the property. Once the market
value is substantiated, it is upto the court below
to follow the mandate under Order XXI Rule 64 of
CPC and decide as to whether sale of entire
property is necessary to satisfy the decree debt.
All pending interlocutory applications are
closed.
Sd/-
T.V.ANILKUMAR
JUDGE
ami/
O.P.(C)No.406 of 2021
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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE EX-PARTE DECREE DATED
30.10.2012 ON THE FILES OF THE HON'BLE
PRINCIPAL SUB COURT, THRISSUR, IN
O.S.1626/2011.
EXHIBIT P2 TRUE COPY OF THE SALE NOTICE DATED NIL
IN E.P.NO.119/2018 IN O.S.NO.1626/2011.
EXHIBIT P3 TRUE COPY OF THE E.A.NO.240/2020 IN
E.P.NO.119/2018 IN O.S.NO.1626/2011.
EXHIBIT P4 TRUE COPY OF THE E.A.NO.242/2020 IN
E.P.NO.119/2018 IN O.S.NO.1626/2011.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN
OP(C)NO.719/2020 DATED 11.3.2020.
EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER IN E.P.NO.119/2018.
EXHIBIT P7 TRUE COPY OF THE E.A.NO.629/2020.
EXHIBIT P8 TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENTS 1 TO 4 IN E.A.NO.629/2020.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 19.1.2021
IN E.A.NO.629/2020 IN E.P.NO.119/2018 IN
O.S.NO.1626/2011.
