Unnimadhavan Nair vs Sree Narayana Investments
2022 Latest Caselaw 11142 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
 WEDNESDAY, THE 23RD DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944
                     OP(C) NO. 1259 OF 2017


   AGAINST THE ORDER DATED 21.02.2017 IN E.P.NO.16/2008 IN   OS
            240/1985 OF PRINCIPAL SUB COURT, PALAKKAD
PETITIONER/JUDGMENT DEBTOR:

          UNNIMADHAVAN NAIR,
          LEELAMANDIRAM,
          MALAMALMUKKIL, KATTUSSERI AMSOM,
          ALATHUR TALUK.

          BY ADVS.   SRI.K.PAUL KURIAKOSE
                     SRI.T.A.RAFEEK CHERTHALA


RESPONDENT/S:

          SREE NARAYANA INVESTMENTS,
          REPRESENTING BY ITS MANAGING PARTNER,
          V.S.CHAMUNNI, S/O.V.G.SUKUMARAN,
          ERIMAYUR VILLAGE, ALATHUR TALUK,
          PALAKKAD DISTRICT, PIN-678546.

      THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C)No.1259/2017

                                  -:2:-




                Dated this the 23rd day of November, 2022

                          JUDGMENT

Aggrieved and confronted with Ext.P11 order

dated 21.02.2017 passed in E.P.No.16/2008 in

O.S.No.240/1985 by the Court of the Principal

Subordinate Judge, Palakkad, the judgment debtor has

filed the original petition. The respondent is the

decree-holder.

2. The antecedent facts leading to Ext P11

order, in a nut shell, are: the respondent had filed the

suit against the petitioner for recovery of money.

Ext P3 preliminary decree was passed on 31.10.1989.

Subsequently, Ext P4 final decree was passed on

11.04.2003. The respondent put the final decree to

execution by filing E.P.No.16/2008. Ext P5 draft sale

proclamation (DSP) was published. The petitioner

objected to the DSP by filing Exts P6 and P7 objections. O.P.(C)No.1259/2017

The petitioner has only 1/5th share in the property that

has been mortgaged to the respondent. The actual

extent of the property to be sold as per Ext P5 is only

15.25 cents. However, without taking note of any of

the above aspects, the court below in a mechanical

manner and by a laconic order has fixed the upset

price of the property at Rs.20 lakhs for 20 cents of

garden land. Ext.P11 is ex facie illegal and wrong.

Hence, the original petition.

3. Heard; Sri. K.Paul Kuriakose, the learned

counsel appearing for the petitioner and Smt.Prabha

R.Menon, the learned counsel appearing for the

respondent.

4. On an analysis of the pleadings and materials,

on record, it can be gathered that both the petitioner

and respondent have not filed any estimate, as

contemplated under the proviso to Rule 66(2) of Order O.P.(C)No.1259/2017

21 of the Code of Civil Procedure,1908(in short,

'C.P.C.'). Instead, the court below has on its own

volition fixed the upset price.

5. The course adopted by the court below is in

hostile violation of the above quoted provisions of the

Code. The court below ought to have directed the

parties to file their estimates and then fixed the upset

price. Therefore, I hold that Ext P11 order is vitiated

by material irregularity, impropriety and illegality,

which warrants to be interfered by this Court invoking

its power of superintendence under Article 227 of the

Constitution of India.

In the result, I allow the original petition as

follows:

       (i)       Ext P11 order is set aside.

       (ii)      The petitioner and the respondent are

directed to appear before the court below on 12.12.2022.

O.P.(C)No.1259/2017

(iii) The court below shall, after adverting to the contentions raised by the petitioner in the objection to the execution petition, decide the executability of the decree in E.P.No.16/2008, in accordance with law.

(iv) If the court below finds that the decree is executable, then the court below shall direct the petitioner and the respondent to file their respective estimates as contemplated under the above quoted provision and then fix the upset price of the property and, thereafter, proceed with the execution petition as expeditiously as possible.

Sd/-

                                           C.S.DIAS,JUDGE

DST/23.11.22                                                //True copy/

                                                            P.A.To Judge
 O.P.(C)No.1259/2017






                             APPENDIX



PETITIONER EXHIBITS
EXHIBIT P1          PHOTOSTAT COPY OF E.P.NO.16 OF 2008 IN

O.S.NO.240 OF 1985 ON THE FILES OF THE PRINCIPAL SUB COURT, PALAKKAD.

EXHIBIT P2 PHOTOSTAT TRUE COPY OF JUDGMENT DATED 01-

10-1989 IN O.S.NO.240/1985.

EXHIBIT P3 PHOTOSTAT TRUE COPY OF PRELIMINARY DECREE DATED 31-10-1989 IN O.S.NO.240 OF 1985.

EXHIBIT P4 PHOTOSTAT TRUE COPY OF FINAL DECREE DATED 11-4-2003 IN O.S.NO.240/1985.

EXHIBIT P5 PHOTOSTAT TRUE COPY OF PROCLAMATION FOR SALE BY PUBLIC AUCTION DATED NIL.

EXHIBIT P6 PHOTOSTAT TRUE COPY OF OBJECTIONS DATED 21-

09-2010 TO SUCH NOTICE UNDER ORDER XXI, RULE 66, FILED BY THE PETITIONER IN E.P.NO.16/2008 IN O.S.NO.240 OF 1985, SUB COURT, PALAKKAD.

EXHIBIT P7 PHOTOSTAT TRUE COPY OF OBJECTIONS DATED 08-

02-2016 TO SUCH NOTICE UNDER ORDER XXI, RULE 66, FILED BY THE PETITIONER IN E.P.NO.16/2008 IN O.S.NO.240 OF 1985, SUB COURT, PALAKKAD.

EXHIBIT P8 PHOTOSTAT TRUE COPY OF CALCULATION STATEMENT FILED BY THE RESPONDENT/DECREE HOLDER DATED 03-09-2016.

EXHIBIT P9 PHOTOSTAT TRUE COPY OF CALCULATION STATEMENT FILED BY THE PETITIONER/JUDGMENT DEBTOR DATED 04-02-2014.

EXHIBIT P10 PHOTOSTAT TRUE COPY OF DECREE DATED 12-01-

2005 IN A.S.NO.324 OF 2001 OF THE DISTRICT COURT, PALAKKAD.

O.P.(C)No.1259/2017

EXHIBIT P11 PHOTOSTAT TRUE COPY OF ORDER DATED 21-2-

2017 IN E.P.NO.16 OF 2008 IN O.S.NO.240 OF 1985 OF THE PRINCIPAL SUB COURT, PALAKKAD.