Kerala High Court
Jollychan P. Joseph vs P. T Thomas on 15 September, 2022
OP(C) NO. 1522 OF 2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 15TH DAY OF SEPTEMBER 2022 / 24TH BHADRA, 1944
OP(C) NO. 1522 OF 2022
AGAINST THE ORDER/JUDGMENT IN EP 16/2019 OF SUB COURT, PALA
PETITIONER/S:
1 JOLLYCHAN P. JOSEPH, AGED 52,
S/O. JOSEPH, PULIMOOTTIL HOUSE, THALAPPALAM KARA,
ERATTUPETTA VILLAGE, MEENACHIL TALUK, KOTTAYAM
DISTRICT, PIN - 686122
2 USHA JOLLYCHAN, AGED 50 YEARS
W/O.JOLLYCHAN P. JOSEPH, AGED 52,
PULIMOOTTIL HOUSE, THALAPPALAM KARA,
ERATTUPETTA VILLAGE, MEENACHIL TALUK, KOTTAYAM
DISTRICT, PIN - 686122
BY ADVS.
BABY THOMAS
GEORGE T.J
MARIAMMA JOSEPH
BIJU GEORGE
RESPONDENT/S:
P. T THOMAS, AGED 64, S/O.THOMAS,
PLATHOTTATHIL HOUSE, KIDANGOOR VILLAGE, PULLAPALLY
KARA, MEENACHIL TALUK, KOTTAYAM, PIN - 686572
BY ADV P.C. Haridas Pulickal Chandrasekhara pillai
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
15.09.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 1522 OF 2022
2
JUDGMENT
Aggrieved by the order dated 15.07.2022 (Ext.P8)
passed in E.P.No.16/2019 in O.S.No.44/2014 of the Court
of the Subordinate Judge, Pala, the judgment debtors
have filed the original petition. The decree holder is the
respondent.
2. The antecedent facts relevant for the
determination of the original petition are: the petitioners
are the judgment debtors in Ext.P1 execution petition
filed by the respondent, to realise the money from the
petitioners due under the decree. Eventhough the
respondent has shown three items of property in Ext.P1,
he has proceeded only against item No.3 scheduled
property. The petitioners have filed Ext.P2 written
objection to the draft sale proclamation and Exts.P3 and
P4 written objections to Ext.P1 execution petition. The
court below, without considering the objections, by
OP(C) NO. 1522 OF 2022
Ext.P5 order, fixed the upset price of item No.3 schedule
property at Rs.20,00,000/-. Challenging Ext.P5 order, the
petitioners filed O.P.(C). No.1165/2022 before this Court.
This Court, by Ext.P6 order, directed the court below to
defer the sale proceedings on condition that the
petitioners deposit an amount of Rs.5,00,000/- before the
court below. Then, the respondent filed I.A.No.1/2022
(Ext.P7) in Ext.P1, to substitute item No.2 schedule
property in place of item No.3 schedule property.
Without granting the petitioners an opportunity to file
their objections to Ext.P7 application, the court below, by
the impugned Ext.P8 order, directed the sale of the
attachment schedule property. Likewise, the court below,
on the same day of passing Ext.P8 order i.e. 15.07.2022,
by Ext.P9 order, allowed the substitution of item No.3
property with item No.2 property. The court below has
not complied with any of the procedural formalities as
prescribed under the Code of Civil Procedure (in short,
OP(C) NO. 1522 OF 2022
'Code'), including, effecting of proclamation or fixing of
upset price. Instead, on the basis of proclamation and
upset price fixed for item No.3 property, the court below
has directed item No.2 property to be sold. The entire
proceedings leading to Exts.P8 and P9 are vitiated by
material irregularity and are illegal. Hence, the original
petition.
3. Heard; Sri.Baby Thomas, the learned counsel
appearing for the petitioners and Sri. P. C. Haridas, the
learned counsel appearing for the respondent.
4. The point is whether there is any illegality in
Exts.P8 and P9 orders.
5. Undisputedly, the sale proceedings were initiated
only against item No.3 scheduled property in Ext.P1
execution petition. The proclamation and upset price in
respect of item No.3 property was alone effected and
fixed. No steps were taken to proclaim and sell item No.2
OP(C) NO. 1522 OF 2022
property. However, when the execution petition reached
the stage of sale, the respondent filed Ext.P7 application,
to substitute item No.2 scheduled property in place of
item No.3 scheduled property. The court below, without
affording the petitioners an opportunity to file their
counter affidavit/written objection to Ext.P7 application,
allowed the application and passed Ext.P9 order, and has
proceeded against item No.2 property as per the
impugned Ext.P8 order.
6. I find the course and procedure adopted by the
court below to be in violation of the principles of natural
justice and against the established procedure of law laid
down under the Code. The court below ought to have
effected the proclamation of sale of item No.2 schedule
property and followed all the other statutory formalities,
before proceeding with the sale of item No.2 schedule
property. Thus, I hold the procedure adopted in passing
Exts.P8 and P9 orders are irregular, improper and
OP(C) NO. 1522 OF 2022
unsustainable in law.
7. In the above legal and factual background, I am
constrained to invoke the powers of superintendence of
this Court under Article 227 of the Constitution of India
and allow the original petition.
8. In the result, the original petition is allowed as
follows:
(i) Ext.P8 order dated 15.07.2022 in E.P.No.16/2019
in O.S.No.44/2014 is set aside.
(ii) Ext.P9 order dated 15.07.2022 in E.A.No.1/2022
in E.P.No.16/2019 in O.S.No.44/2014 is set aside.
(iii) The court below shall permit the petitioners to file
their written objection to E.A.No.1/2022.
(iv) The court below shall, after considering the
objections filed by the petitioners, dispose of
E.A.No.1/2022 in accordance with law.
OP(C) NO. 1522 OF 2022
(v) In case the court below finds that the respondent
has the right to proceed against item No.2
property, the court below shall proceed against
the said property in accordance with law.
Sd/-
C.S.DIAS, JUDGE
rkc/15.09.22
OP(C) NO. 1522 OF 2022
APPENDIX OF OP(C) 1522/2022
PETITIONER EXHIBITS
Exhibit-P1 TRUE COPY OF THE EXECUTION PETITION AND
SCHEDULE FOR PUBLIC AUCTION DATED 12.04.2019
IN EP 16/2019 IN O.S NO. 44/2014 OF SUB COURT
PALA
Exhibit -P2 TRUE COPY OF THE OBJECTION DTD. 25.11.2019 TO
DRAFT SALE PROCLAMATION IN EP 16/2019 IN O.S
NO. 44/2014 OF SUB COURT PALA
Exhibit-P3 TRUE COPY OF THE OBJECTION DTD. 13.07.2020 IN
EP 16/2019 IN O.S NO. 44/2014 OF SUB COURT
PALA
Exhibit-P4 TRUE COPY OF THE ADDITIONAL OBJECTION DTD.
13.07.2020 IN EP 16/2019 IN O.S NO. 44/2014 OF
SUB COURT PALA
Exhibit _P5 TRUE COPY OF THE ORDER DATED 02.06.2022
Exhibit-P6 TRUE COPY OF THE ORDER DATED 01.07.2022
Exhibit -P7 TRUE COPY OF THE EXECUTION APPLICATION DTD.
10.06.2022 IN EP 16/2019 IN O.S NO. 44/2014 OF
SUB COURT PALA
Exhibit-P8 TRUE COPY OF THE ORDER DATED 15.07.2022
Exhibit-P9 TRUE COPY OF THE ORDER DATED 15.07.2022
Exhibit-P10 A TRUE COPY OF THE MEDICAL CERTIFICATE DATED
14.07.2022
Exhibit-P11 A TRUE COPY OF THE REVIEW PETITION DATED
10.08.2022
Exhibit-P12 A TRUE COPY OF THE OBJECTION DATED 10.08.2022
