Roshni V Nair vs Rajani
2022 Latest Caselaw 10598 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                        THE HONOURABLE MR.JUSTICE C.S.DIAS

              FRIDAY, THE 21ST DAY OF OCTOBER 2022 / 29TH ASWINA, 1944

                               OP(C) NO. 570 OF 2022

 AGAINST THE ORDER/JUDGMENT EP 79/2013 IN OS 262/2010 OF SUB COURT / COMMERCIAL

                               COURT, PATHANAMTHITTA

PETITIONER:

              ROSHNI V NAIR,
              VAISHNAVAM, AIKKADU MURI,
              KODUMON VILLAGE ADOOR ,
              PATHANAMTHITTA-691 555

              BY ADV C.A.RAJEEV


RESPONDENT:

              RAJANI
              CHARIVUPURATHU VEEDU,
              NARIYAPURAM MURI, VALLICODE VILLAGE,
              KOZHENCHERRY TALUK,
              PATHANAMTHITTA-689 648

              BY ADVS.
              Murleekrishnan R
              D.KISHORE(K/000608/1993)



      THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2022, THE COURT ON

THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C)NO.570 of 2022

                               2



                            JUDGMENT

Dated this the 21st day of October, 2022

The original petition is filed to call for the

records in E.P.No.79/2013 in O.S.No.262/2010 of the

Court of the Subordinate Judge, Pathanamthitta and

set aside the sale proclamation dated 17.02.2022.

2. The concise case of the petitioner, relevant for

the determination of the original petition, is: the

petitioner is the judgment debtor in the above

execution petition, which is filed by the respondent. As

per the decree in O.S.No.262/2010, the respondent is

permitted to realise an amount of Rs.3 Lakh/- with

interest at the rate of 16% per annum from 24.09.2009,

with a charge over the execution schedule property.

The respondent proceeded against property in the

execution petition. At the stage of drawing up of the

proclamation, the court below directed the production

of the encumbrance certificate and fair value of the O.P.(C)NO.570 of 2022

property. Despite various objections raised by the

petitioner, without a proper enquiry, the court below

settled the proclamation. The petitioner filed

O.P.(C)No.3010/2015 before this Court. By Ext.P3

judgment, this Court set aside the proclamation and

permitted the parties to produce the documents

required to order a fresh proclamation. Thereafter, the

court below proceeded with the execution. On

15.01.2022, the court below, as per Ext.P4, settled the

proclamation and ordered the sale of entire extent of

16.10 ares. A perusal of Ext.P4 establishes that there

is no schedule of the property attached to the

proclamation. The petitioner filed E.A.No.45/2022,

stating that the value of the property is about 2 Lakh/-

per cent and the entire property need not be sold. The

court below, by Ext.P5 order, allowed the application

and confined the sale to 12.5 cents. No publication in

respect of Ext.P5 order has been passed till date. The

petitioner has not been served with the sale O.P.(C)NO.570 of 2022

proclamation and has been kept in the dark. There is

an attempt to sell the property for a song. The entire

property is mortgaged to the Syndicate Bank and the

bank has proceeded against the property by filing

O.A.No.333/2016. The petitioner has also filed Ext.P8

application to permit her to pay off the decree debt in

installments. Even though she filed an application to

advance the hearing of the execution petition, the

court below has adjourned the execution petition,

stating that there was no urgency. The order dated

04.03.2022 is passed, without hearing the petitioner.

The execution proceedings are vitiated and filled with

material irregularity. Hence, the original petition.

3. Heard; Sri.C.A.Rajeev, the learned counsel

appearing for the petitioner and Sri.D.Kishore, the

learned counsel appearing for the respondent.

4. The point is whether there is any material

irregularity in the execution proceedings.

5. On an analysis of the pleadings and materials O.P.(C)NO.570 of 2022

on record, it is seen that this Court by Ext.P3

judgment had set aside the earlier sale proclamation,

on the ground that it does not contain the extent of

property, the survey number and other details of the

property. The parties were directed to furnish the

details of the properties proposed to be sold.

6. Pursuant to Ext.P3 judgment, it is evident

from the Ext.P5 proceedings sheet that on 26.11.2021,

the respondent has produced the valuation certificate

of the property. The court below found that, as the

value of the property was Rs.50,000/- per cent in the

year 2015, the value has increased to Rs.80,000/- after

six years. Accordingly, the court below held that only

12.5 cents of land need to be sold.

7. The principal grievance of the petitioner is

that, even though the court below, by the order dated

17.02.2022, has confined the sale of the property to

12.5 cents, no fresh proclamation has been issued. I

find the grievance to be correct. If the court below has O.P.(C)NO.570 of 2022

felt that only 12.5 cents of land need be sold, certainly

a fresh proclamation is to be issued in the said regard.

In the above factual and legal matrix, I am of the

definite view that the court below is to be directed to

issue a fresh sale proclamation, as observed above,

with respect to 12.5 cents of land, and then proceed

with the sale.

In the result, in exercise of the supervisory

powers of this Court under Article 227 of the

Constitution of India, I dispose of the original petition

in the following manner:-

i) The Court of the Subordinate Judge,

Pathanamthitta, is directed to issue a fresh sale

proclamation, confining the sale to 12.5 cents as held

in order dated 17.02.2022, and proceed with the sale

of the property in accordance with law.

ii) As the E.P. is of the year 2013, the court

below shall make every endeavour to dispose of

E.P.No.79/2013, in accordance with law, as O.P.(C)NO.570 of 2022

expeditiously as possible, at any rate within a period of

three months from the date of receipt of a certified

copy of the judgment.

Sd/-

C.S.DIAS Judge

NR/21/10/2022 O.P.(C)NO.570 of 2022

APPENDIX

PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF EP 79/2013 DATED NIL OF THE RESPONDENT BEFORE THE SUB COURT PATHANAMTHITTA

Exhibit P2 TRUE COPY OF ENCUMBRANCE CERTIFICATE DATED .

7.3.2014

Exhibit P3 TRUE COPY OF JUDGMENT DATED 7.11.2019 OF THE HIGH COURT OF IN OPC 3010/15

Exhibit P4 TRUE COPY OF SALE PROCLAMATION DATED 15.1.22

Exhibit P5 TRUE COPY OF PROCEEDINGS IN EP 79/13 FROM 25.9.13 TO 17.2.22

Exhibit P6 TRUE COPY OF EA 93/22 DATED 28.2.22 FILED BY THE PETITIONER

Exhibit P7 TRUE COPY OF OA 333/2016 PENDING BEFORE THE DRT-11 ERNAKULAM

Exhibit P8 TRUE COPY OF EA 94/22 DATED 28.2.22 FILED BY THE PETITIONER

Exhibit P9 TRUE COPY OF EA 96/22 DATED 4.3.22 FILED BY THE PETITIONER