Muhammad Askar vs Angadipuram Service ...
2022 Latest Caselaw 6249 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
          THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
    FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
                   OP(C) NO. 3243 OF 2019
AGAINST E.P.NO.67/2015 IN ARC 1086/2013 OF MUNSIFF MAGISTRATE
                    COURT,PERINTHALMANNA
PETITIONER/JUDGEMENT DEBTOR:

          MUHAMMAD ASKAR,
          AGED 49 YEARS,
          S/O. PARAMBIL MOHAMMAD, KURUVA VILLAGE,
          KADUNGAPURAM DESOM, PARAVAKKAL P.O., KADUNGAPURAM,
          PERINTHALMANNA TALUK 679 321.
          BY ADV M.KRISHNAKUMAR


RESPONDENT/DECREE HOLDER:

          ANGADIPURAM SERVICE CO-OPERATIVE BANK
          REPRESENTED BY ITS SECRETARY, PARIYAPURAM-
          ANGADIPURAM ROAD, KAYAL PADAM, ANGADIPURAM, KERALA
          679 321.

          BY ADV SRI.P.ABDUL NISHAD


     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON25.05.2022,
THE COURT ON 03.06.2022 DELIVERED THE FOLLOWING:
 O.P(C).No.3243/2019                 2




                      A. BADHARUDEEN, J.
              ================================
                      O.P(C).No.3243 of 2019
              ================================
                 Dated this the 3rd day of June, 2022


                           JUDGMENT

Judgment debtor in E.P.No.67/2015 in ARC.No.1086/2013 on

the file of the Munsiff-Magistrate Court, Perinthalmanna, is the

petitioner herein and he impugns Ext.P3 order dated 05.08.2019

passed by the Munsiff in the above execution petition. The

respondent herein is the decree holder.

2. Heard both sides in detail.

3. While assailing Ext.P3, the learned counsel for the

petitioner pointed out that a portion of the mortgaged property is

sufficient to satisfy the decree. The court below also, after taking

such a view, appointed a Commissioner to locate the property

sufficient for realising the decree. As per Ext.P1 report, the

Commissioner had given emphasis to a location sketch obtained

from Village Officer, Kuruva dated 19.05.2011 and based on the

sketch, the Commissioner divided the property as plot A, plot B

and plot C. Out of which, plot A having an extent of 16 cent was

ordered to be sold by the execution court after fixing its market

value at Rs.25 lakh as reported by the Commissioner. According to

the learned counsel for the petitioner, in the report itself, the

Commissioner stated that property to an extent of 7.85 cent and

21.5 cent are lying contiguously and the assistance of the Village

Officer is necessary to locate its boundaries. Therefore, the learned

counsel would submit that the court below ought to have appointed

the Village Officer to assist the Commissioner to locate the lie of

the property. He also submitted that on the middle of the entire

extent of property, there exists a house and, therefore, it is

necessary to find out a portion of the property sufficient to satisfy

the decree excluding the house. In order to prove the existence of

the house therein, Ext.P4, a plan without much details, prepared by

a licenced surveyor at the instance of the petitioner, has been

placed. In fact, the said plan was not filed before the execution

court or the same is not sufficient to locate the property which is

sufficient to satisfy the decree.

4. Whereas the learned counsel for the decree holder

would submit that at the time when the mortgage was created, there

was no house in the property and at present also there is no house

as stated in Ext.P4. According to him, sale of plot A is sufficient to

satisfy the decree and the intention of the judgment debtor is to

drag the execution proceedings in a litigation, started in the year

2013. Therefore, he submitted that the Original Petition is liable to

be dismissed.

5. Going by Ext.P4 relied on by the petitioner itself, it is

clear that out of the total extent of property, 21.50 cent is the

property covered by document No.2785/99. Commission located

16 cent of property out of this 21.50 cent covered by the said

document and the said document is silent as regards to the

existence of any building in the property. In Ext.P4 plan, 16 cent

located by the Commissioner is not specifically shown to convince

this Court that in plot A, a portion of the house is situated. It is

interesting to note further that Ext.P2 is the copy of petition filed

by the judgment debtor before the execution court. In the said

petition, while seriously disputing the market value of the property

fixed by the Commissioner, another contention seen raised in the

petition that a portion of the house is overlapping to 16 cent of

property located by the Commissioner as plot `A'.

6. On perusal of the commissioner report (Ext.P1), it is not

stated therein that in plot A, any portion of the house is situated.

Even though the Commissioner reported so in Ext.P1, the petitioner

had not shown any interest to locate 16 cent inclusive of the portion

of the house while preparing Ext.P4. Instead, 2 plots having an

extent of 16 cent and 21.50 cent covered by 3 documents shown

together after showing existence of the house. Ext.P4 does not

suggest that plot A located by the Commissioner includes a portion

of the house in any manner.

7. Though award was passed in the year 2013 and

execution proceedings has been initiated in the year 2015, the

judgment debtor not cared to pay any amount towards the decree

debt and he had not made any attempt to give another feasible plan

so as to sell the said portion which is sufficient to satisfy the

decree. Therefore, it appears that the sale of plot A as reported by

the Commissioner, having an extent of 16 cent is the only way out

to realise the award amount.

8. As regards to the challenge against the market value of

the property also, nothing substantiated by the petitioner, either

before the trial court or before this Court to show that the value

assessed by the Commissioner is on lower side. Thus it appears

that Ext.P3 order under challenge does not suffer from any

perversity, arbitrariness or illegality to set aside the same by

invoking the supervisory jurisdiction under Article 227 of the

Constitution of India.

Accordingly, this Original Petition is devoid of any merits and

is accordingly dismissed.

Sd/-

(A.BADHARUDEEN, JUDGE) rtr/

APPENDIX OF OP(C) 3243/2019

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE EYE-SKETCH AND THE REPORT DATED 4.01.2019 SUBMITTED BY THE ADVOCATE COMMISSIONER.

EXHIBIT P2 TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER TO THE COMMISSIONERL'S REPORT.

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 5.08.2019 PASSED IN EP NO.67/2015 IN ARC 1086/2013.

EXHIBIT P4 A TRUE COPY OF THE SITE PLAN CERTIFIED BY A LICENSED SURVEYOR DATED 3.12.2019.