Abdul Salim vs Chellappa
2022 Latest Caselaw 6739 Ker

OP(C) Nos.2521/2021 & 610/2022
                                 1

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
                 THE HONOURABLE MR.JUSTICE C.S.DIAS
    TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
                       OP(C) NO. 610 OF 2022
AGAINST THE ORDER/JUDGMENT IN EP 62/2020 OF SUB COURT   PALAKKAD
PETITIONER/DECREE HOLDER:

          ABDUL SALIM
          AGED 47 YEARS
          S/O ISMAIL,
          AGED 47 YEARS,
          PALLAM,
          MUTHALAMADA AMSOM DESOM,
          CHITTUR THALUK,
          PALAKKAD DISTRICT
          678 507, PIN - 678507

          BY ADVS.
          BINOY VASUDEVAN
          SREEJITH SREENATH


RESPONDENT/JUDGMENT DEBTOR:

CHELLAPPA AGED 66 YEARS S/O MUHAMMED IBRAHIM, AGED 66 YEARS, KAMBRACHALLA, MUTHALAMADA AMSOM DESOM CHITTUR THALUK, PALAKKAD DISTRICT 678 507, PIN - 678507

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.06.2022, ALONG WITH OP(C).2521/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OP(C) Nos.2521/2021 & 610/2022

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944 OP(C) NO. 2521 OF 2021 AGAINST THE ORDER/JUDGMENT IN EP 62/2020 IN OS 1/2015 OF SUB COURT, PALAKKAD PETITIONER/JUDGMENT DEBTOR IN EP NO.62/2020 IN O.S.1/2015:

CHELLAPPA, AGED 66 YEARS S/O. MUHAMMED IBRAHIM, RESIDING AT KAMBRATHCHALLA, MUTHALAMADA AMSOM DESOM, CHITTUR TALUK, PALAKKAD 678

507.

BY ADVS.

PRAVEEN K. JOY E.S.SANEEJ M.P.UNNIKRISHNAN M.K.SAMYUKTHA N.ABHILASH T.A.JOY SANDRA S.KUMAR

RESPONDENT/DECREE HOLDER IN E.A. IN E.P NO.62/2020 IN O.S1/2015:

ABDUL SALIM, AGED 47 YEARS S/O. ISMAIL, RESIDING AT PALLAM, MUTHALAMADA, AMSOM, DESOM, CHITTUR TALUK, PALAKKAD 678 507.

BY ADV BINOY VASUDEVAN

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.06.2022, ALONG WITH OP(C).610/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OP(C) Nos.2521/2021 & 610/2022

COMMON JUDGMENT

As these original petitions are filed by the same parties

to E.P.No.62/2020 in O.S.No.1/2015 of the Court of the

Subordinate Judge, Palakkad, they are being disposed of by

this common judgment. The parties are, for the sake of

convenience, referred to as per the status and the pleadings

in O.P(C ) No.2521/2021.

OP(C)No.2521/2021

2. The petitioner, who is the judgment debtor in

E.P.62/2020, has filed O.P (C)No.2521/2021 against the

respondent, to set aside Ext.P5 sale notice passed by the

Execution Court. The petitioner contends that the

respondent has put the compromise decree passed in the

above suit to execution. The petitioner is an aged and

infirm person, and is suffering from a heart ailment. He is

under severe financial difficulty. The petitioner has a OP(C) Nos.2521/2021 & 610/2022

property with road frontage,which would fetch more than

Rs.1.5 crore. There is a building in the property having a

plinth area of 2000 sq.ft . If the building is excluded, only

two cents on the western side need be sold, which would

fetch an amount of Rs.30 lakh and is sufficient to clear the

decree debt. The petitioner had filed E.A. 152/2021 in

E.P.No.62/2020 pointing out all the above aspects,

requested the court below to apply the principles under

Order XXI, Rule 64 of the Code of Civil Procedure, and

recall the sale proceeding, and also to direct a Village

Officer to identify two cents of the plaint property on the

western side. An Advocate Commissioner was appointed to

conduct a local inspection, who has filed Ext.P4 commission

report. Nevertheless, the Execution Court without adverting

to the above application and the report of the Advocate

Commissioner, has passed impugned Ext.P5 order by

including the house of the petitioner. Ext.P5 is illegal and

arbitrary and is liable to be set aside. Hence the original

petition.

OP(C) Nos.2521/2021 & 610/2022

OP(C) No.610/2022

3. The respondent in O.P.(C)610/2022 has filed O.P(C)

610/2022, to direct the court below to consider and dispose

of E.P.No.62/2020 within a time frame.

4. The points that arise for consideration in these

original petitions are:

(i) Whether Ext.P5 order is erroneous or wrong? and

(ii) Whether E.P. 62/2020 is to be disposed of within a time frame?

Point No.(i)

5. Admittedly,the petitioner had filed E.A No.152/2021

in the execution petition, to apply the principles under

Order XXI, Rule 64 of the Code of Civil Procedure and recall

the sale proceeding, so that only a portion of the property

need to be sold to satisfy the decree debt. Thereafter, the

petitioner had approached this Court and filed

O.P(C).No.884/2021. This Court by Ext.P2 judgment directed

the Execution Court to consider and dispose of the above OP(C) Nos.2521/2021 & 610/2022

application within a period of six months from 30.6.2021.

Then, on the request of the petitioner, an Advocate

Commissioner was appointed and Ext.P4 report was placed

before the Execution Court.

6. Nevertheless, on a perusal of Ext.P5 sale notice,

there is nothing to show that the court below has adverted

to the application filed by the petitioner or Ext.P4

commission report. In the above background, I am of the

firm view that Ext.P5 sale notice is erroneous, is liable to be

set aside, and the matter has to be reconsidered afresh by

the Execution Court.

Point No.(ii)

7. The execution petition is of the year 2020. Thus, I

leave it to the direction of the Execution Court to decide

whether the execution petition has to be given due

precedence than the pending cases of the same category. OP(C) Nos.2521/2021 & 610/2022

In the result, I allow the original petitions in the

following manner:

(i) Ext.P5 sale notice is set aside.

(ii) The Execution Court is directed to consider E.A No.152/2021, after adverting to Ext.P4 commission report, in accordance with law and pass orders thereon, as expeditiously as possible.

(iii) The Execution Court shall give credit to the amount of Rs.5 lakh that has been deposited by the petitioner, pursuant to the order dated 23.12.2021 passed by this Court.

(iv) The Execution Court shall decide whether the execution petition has to be given due precedence and considered before the other older pending cases of the same category.

ma/14.6.2022 Sd/- C.S.DIAS, JUDGE OP(C) Nos.2521/2021 & 610/2022

APPENDIX OF OP(C) 2521/2021

PETITIONER EXHIBITS

Exhibit P1 THE TRUE COPY OF THE EP 62/2020 OF SUB COURT, PALAKKAD.

Exhibit P2 THE TRUE COPY OF THE JUDGMENT IN OPC 884/2021 DATED 30.6.2021.

Exhibit P3 THE TRUE COPY OF THE E- COURT DAILY STATUS OF EP NO. 62/2020 IN OS 1/2015 ON THE FILES OF SUBORDINATE JUDGE COURT, PALAKKAD DATED 16.9.2021.

Exhibit P4 THE TRUE COPY OF THE REPORT FILED BY THE ADVOCATE COMMISSIONER DATED 15.11.2021 IN EP NO. 62/2020 IN OS 1/2015 ON THE FILES OF SUBORDINATE JUDGE COURT, PALAKKAD.

Exhibit P5 THE TRUE COPY OF THE SALE NOTICE UNDER ORDER 21 RULE 66 ISSUED BY THE SUB COURT, PALAKKAD, IN EP NO. 62/2020 IN OS 1/22015 DATED 14.12.2021.

Exhibit P6 THE TRUE COPY OF THE MEMO FILED BY THE COUNSEL FOR THE JUDGMENT DEBTOR BEFORE THE PRINCIPAL SUB COURT, PALAKKAD DATED 31.12.2021.

Exhibit P7 THE TRUE COPY OF THE MEMO FILED BY THE COUNSEL FOR THE JUDGMENT DEBTOR BEFORE THE PRINCIPAL SUB COURT, PALAKKAD DATED 31.1.2022.

Exhibit P8 THE TRUE COPY OF THE CHALLAN APPLICATION FILED BY THE COUNSEL FOR THE JUDGMENT DEBTOR BEFORE THE PRINCIPAL SUB COURT, PALAKKAD DATED 31.1.2022.

OP(C) Nos.2521/2021 & 610/2022

APPENDIX OF OP(C) 610/2022

PETITIONER EXHIBITS

Exhibit P-1 TRUE COPY OF THE AWARD DATED 08-11-2018

Exhibit P-1 (a) TRUE COPY OF THE JOINT STATEMENT FILED BETWEEN THE PARTIES ON 08-11-2018 BEFORE THE LOK ADALATH

Exhibit P-2 TRUE COPY OF E.P.NO.62/2020 IN O.S.NO.1/2015 ON THE FILE OF THE SUB COURT, PALAKKAD

Exhibit P-3 TRUE COPY OF E.A.NO.152/2021 IN E.P.NO.62/2000 IN O.S.NO.1/2015

Exhibit P-4 TRUE COPY OF THE JUDGMENT DATED 30-06-2021 IN O.P.(C) NO.884 OF 2021

Exhibit P-5 TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 15-11-2021

Exhibit P-6 TRUE COPY OF THE PROCLAMATION OF SALE UNDER ORDER 21 RULE 66 OF THE CODE.

Exhibit P-7 TRUE COPY OF THE INTERIM ORDER DATED 23-12-

2021 IN O.P.(C) NO.2521/2021