Babumon vs Anil
2022 Latest Caselaw 6585 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
     THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
                      O.P.(C) NO.492 OF 2022

E.P.NO.41 OF 2019 IN O.S. NO.470/2013 ON THE FILE OF PRINCIPAL
MUNSIFF COURT, KOLLAM.
PETITIONERS/JUDGMENT DEBTORS/DEFENDANT:

    1     BABUMON,
          AGED 44 YEARS, S/O. CHELLAPPAN,
          VALUTHUNDIL HOUSE,
          MARAVOOR CHERRY, EAST KALLADA P.O.,
          EAST KALLADA VILLAGE, KOLLAM DISTRICT, PIN-691 502.

    2     MINIMOL,
          AGED 41 YEARS, W/O. BIJUMON,
          VALUTHUNDIL HOUSE,
          MARAVOOR CHERRY, EAST KALLADA P.O.,
          EAST KALLADA VILLAGE, KOLLAM DISTRICT, PIN-691 502.

          BY ADVS.
          M.T.SURESHKUMAR
          R.RENJITH
          SREELAKSHMI SABU
          MANJUSHA K



RESPONDENT/DECREE HOLDER/PLAINTIFF:

          ANIL,
          AGED 54 YEARS, S/O. RAGHAVAN,
          RESIDING AT ANUSREE, SARAYU NAGAR 61A,
          ASRAMAM CHERRY, KOLLAM EAST VILLAGE,
          KOLLAM TALUK, KOLLAM DISTRICT, PIN-691 008.

          BY ADV. C.R. JAYAKUMAR

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.06.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                     -2-
O.P.(C) NO.492 OF 2022


                           C.S. DIAS, J.
             ------------------------------------------------
                     O.P.(C) No.492 of 2022
             ------------------------------------------------
             Dated this the 9th day of June, 2022

                             JUDGMENT

The original petition is filed, to set aside Ext.P4

order passed by the court of the Principal Munsiff's,

Kollam in E.P.No.41/2019 in O.S.No.470/2013.

2. The concise case of the petitioners in the

memorandum of original petition is that, they are the

judgment debtors in the above execution petition, filed

by the respondent. The respondent had instituted Ext.P1

plaint seeking a decree for recovery of money. In a

mediation proceeding, the parties settled their disputes

as per conditions in the memorandum of settlement. The

trial court, by Ext.P3 judgment and decree, decreed the

suit on 09.09.2015. The petitioners are in joint

possession and ownership of 1.60 Ares of property in

East Kallada Village. The petitioners are daily wage

workers. The original transaction was only for

O.P.(C) NO.492 OF 2022

Rs.50,000/-. They have already paid Rs.85,000/- as per

the decree. The petitioners were in the dark regarding

the execution proceeding. It was only when they

received Ext.P4 notice, that they became unaware of the

execution petition. The executability of the decree is

highly questionable. Even though the petitioners filed

Ext.P5 application to stay the execution proceeding, the

same has not been considered by the execution court.

Hence the original petition.

3. Heard Smt. Sreelakshmi Sabu, the

learned counsel appearing for the petitioners and

Sri. C.R. Jayakumar, the learned counsel appearing for

the respondent.

4. The point out that arises for consideration in

this original petition is whether there is any illegality or

impropriety in Ext.P4 order passed by the execution

court.

5. It is the specific case of the petitioners that

they have not received any notice in the execution

O.P.(C) NO.492 OF 2022

petition. On a perusal of Ext.P4, it can be gathered that

the execution court has fixed the upset price of the

execution schedule property at Rs.75,000/-. Admittedly,

the property has an extent of 1.60 Ares. There is no

material to substantiate the manner in which the upset

price was fixed.

6. The second proviso to Rule 66(2) (b) of Order

XXI of the Code of Civil Procedure mandates that the

estimate of the value of the property put for sale shall

include the estimate given by either or both the parties.

7. There is nothing on record to show that either

party has given any estimate as to the value of the

property. Moreover, there is nothing on record to prove

that the petitioners were served with notice in the

execution petition. In the above legal and factual

background, I am of the firm view to do complete justice

that the petitioners should be given an opportunity to file

their written objection to the execution petition and

contest the proceeding on its merits. Hence I am

O.P.(C) NO.492 OF 2022

inclined to exercise the supervisory powers of this Court

as enshrined under Article 227 of the Constitution of

India andset aside Ext.P4 order.

In the result, the original petition is allowed in the

following manner:

i) Ext.P4 order shall set aside.

ii) The petitioners shall produce a copy of this judgment before the execution court.

iii) The petitioners shall mark their appearance through their counsel before the execution court on 27.06.2022.

iv) The petitioners' may file their written objection to the execution petition within one month from 27.06.2022.

v) The execution court shall consider the written objection and decide the execution petition in accordance with law.

Sd/-

C.S. DIAS JUDGE bpr

O.P.(C) NO.492 OF 2022

APPENDIX OF OP(C) 492/2022

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 05.06.2013 AS O.S. NO.470/2013 ON THE FILE OF MUNSIFF'S COURT, KOLLAM.

EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS ON 06.08.2014 IN O.S. NO.470/2013 ON THE FILE OF MUNSIFF'S COURT, KOLLAM.

EXHIBIT P3 THE TRUE COPY OF THE JUDGMENT AND DECREE ALONG THE MEMORANDUM OF AGREEMENT UNDER SECTION 18 AND OF THE CPC READ WITH RULE 24 AND 25 OF THE CIVIL PROCEDURE (MEDITATION) RULES, 2005 DATED 09.09.2015.

EXHIBIT P4 TRUE COPY OF SALE PROCLAMATION DATED 26.02.2022 IN EP NO.41 OF 2019 IN O.S. NO. 470/2013 ON THE FILE OF PRINCIPAL MUNSIFF COURT, KOLLAM.

EXHIBIT P5 TRUE COPY OF THE EA NO. OF 2022 IN EP NO.41 OF 2019 IN O.S. NO.470/2013 ON THE FILE OF PRINCIPAL MUNSIFF COURT, KOLLAM DATED 09.03.2022.