Parayil Basheer vs Secretary
2022 Latest Caselaw 2867 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
    WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
                         OP(C) NO. 279 OF 2022
  AGAINST THE ORDER IN EP 51/2018 IN ARC 4135/2015 OF SUB COURT,
                                 TIRUR
PETITIONER/RESPONDENT:

          PARAYIL BASHEER
          S/O KUNHAYAMU, PONMUNDAM AMSOM-DESOM, P O PONMUDAM,
          TIRUR TALUK, MALAPPURAM DISTRICT-676106.

          BY ADVS.
          JAMSHEED HAFIZ
          K.K.NESNA
          BASIL PAUL



RESPONDENT/PETITIONER:

          SECRETARY
          PONMUDAM SERVICE CO-OPERATIVE BANK LTD NO.10820,
          P O PONMUDAM, MALAPPURAM DISTRICT-676106.

          BY ADV M.SASINDRAN




     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.03.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 279 OF 2022

                                       2

                                  JUDGMENT

Dated this the 16th day of March, 2022

This Original Petition has been filed under Article 227 of

the Constitution of India.

2. In this case, the judgment debtor impugns order

dated 10th December, 2021 in E.A No.1/2021 in E.P

No.51/2018. It is submitted by the learned counsel for the

petitioner that as per the fair value produced as Ext.P7 herein,

the value fixed by the Government per one Are of property

comes to Rs.99825 for residential plot with NH/PWD road

access.

3. Going by the resurvey number mentioned in Ext.P5,

the property herein in Re-Sy.No.282/2009 not mentioned

therein. Going by the order in para No.6, the learned Sub

Judge after arriving at the amount of decree debt to the tune of

Rs.28,50,000/- appraised the contention raised by the OP(C) NO. 279 OF 2022

petitioner. The learned Sub Judge fixed the market value of

one cent of property at Rs.2,22,700/-. Then the learned Sub

Judge observed that the maximum amount if calculated at the

said rate would come to 35,63,200/-. Then the learned Sub

Judge addressed the question as to whether it is possible to sell

a portion of the property for realisation of the decree debt. The

learned Sub Judge after having appraised the plan produced by

the petitioner herein ( a copy of the same is produced as Ext.P6

herein) found that sale of five cents of property on the rear side

of the entire property without any road frontage, if sold, at the

rate of Rs.2,22,700/-, then also the decree debt coming to

Rs.28,50,000/- could not be realized. The learned Sub Judge

also found that since the house is situated overlapping over the

property, sale of the entire property alone is the way available to

execute the decree.

4. The learned counsel appearing for the respondent

Adv.M.Sasindran would submit that the learned Sub Judge fixed OP(C) NO. 279 OF 2022

a higher amount as the market value of property more than ten

times that of the fair value fixed for the property in sub division

9. He also submitted that even as per the plan produced by the

petitioner, it is not possible to sell a portion of the property to

realise a huge sum amounting to Rs.28,50,000/-. Therefore,

sale of the entire property is the device by which the decree

debt could be realised.

5. Having appraised the facts of the case as discussed,

I do agree with the learned Sub Judge and I am of the view

that the entire property is liable to be sold for realisation of the

decree debt and order impugned does not suffer from any

arbitrariness, perversity or illegality.

6. It is submitted by the learned counsel for the

petitioner that, parties were referred to mediation on

24.03.2022 by the execution court and there is likelihood of

settling the dispute through mediation. Therefore, it is made

clear that the process of mediation shall not be interdicted by OP(C) NO. 279 OF 2022

the judgment of this Court and the same can go on. Any

amicable settlement could be worked out without much delay, in

accordance with law.

7. The learned Sub Judge is directed to expedite the

execution petition if the mediation attempt is found to be not

successful. Accordingly this Original Petition is disposed of.

The Registry shall forward a copy of this judgment to the

court below concerned, within seven days, for information and

compliance.

Sd/-

A. BADHARUDEEN JUDGE

spk OP(C) NO. 279 OF 2022

APPENDIX OF OP(C) 279/2022

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE AWARD PASSED BY THE ARBITRATION AWARD PASSED BY THE ARBITRATOR, ASSISTANT REGISTRAR (GENERAL) CO-OPERATIVE SOCIETY, TIRUR IN ARC.4135/2015 DATED 31.05.2017.

Exhibit P2 A TRUE COPY OF THE EXECUTION PETITION FILED BY THE RESPONDENT BANK E P 51/2018 IN ARC. 4135/2015 BEFORE THE SUB COURT, TIRUR DATED 17.10.2018.

Exhibit P3 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN E P 51/2018 IN ARC.4135/2015 BEFORE THE SUB COURT, TIRUR DATED 14.02.2019.

Exhibit P4 A TRUE COPY OF THE E A NO.1/2021 IN E P NO.51/2018 BEFORE THE SUB COURT, TIRUR DATED 06.03.2021.

Exhibit P5 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN E A NO.1/2021 IN EP 51/2018 IN ARC.4135/2015 BEFORE THE SUB COURT, TIRUR DATED 05.07.2021.

Exhibit P6 A TRUE COPY OF THE SKETCH FILED BY THE PETITIONER IN EP 51/2018 IN ARC.4135/2015 BEFORE THE SUB COURT, TIRUR DATED 19.11.2021.

Exhibit P7 A TRUE COPY OF THE FAIR VALUE OF LAND UPDATED BY THE REGISTRATION DEPARTMENT, KERALA.

Exhibit P8 A TRUE COPY OF THE ORDER IN EA NO.1/2021 IN EP NO.51/2018 PASSED BY THE SUB COURT, TIRUR DATED 10.12.2021.

RESPONDENT'S/S EXHIBITS : NIL