Kerala High Court
Salim Kumar vs Sasi on 31 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945
OP(C) NO. 563 OF 2015
AGAINST THE ORDER DATED 9.1.2015 IN E.P. NO.92/2013 IN O.S.NO.
20/2009 OF ADDITIONAL SUB COURT,NORTH PARAVUR
PETITIONER:
SALIM KUMAR
S/O.CHANDRAN,MANAPARAMBIL,NANDYATTUKUNNAM
KARA,PARAVUR PAKUTHY,PARAVUR TALUK.
BY ADV SRI.C.K.PAVITHRAN
RESPONDENT:
SASI
S/O.NARAYANAN,MARATTIPARAMBIL,PARAVOOTHARA
MURI,PARAVUR VILLAGE,PARAVUR TALUK-683513.
BY ADVS. SRI.LIJU. M.P
SRI.A.N.SANTHOSH
SRI.G.BALAMURALEEDHARAN (PARAVUR)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
31.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C) No.563/2015
:2:
Dated this the 31st day of March, 2023
JUDGMENT
The original petition is filed challenging Ext P2
order dated 09.01.2015 passed in E.P.No.92/2013 in
O.S.No.20/2009 by the Court of the Additional
Subordinate Judge, North Paravur. The petitioner was
the judgment debtor and the respondent was the
decree holder.
2. The concise relevant facts leading to Ext P2
order, is that the respondent had filed O.S.No.20/2009,
for a decree of return of money. The suit was decreed
permitting the respondent to realise an amount of
Rs.2,89,205/- from the petitioner. The respondent
proceeded against the property of the petitioner. The
court below, without any materials, has fixed the upset
price of the property at Rs.2,00,000/- per cent.
Although the petitioner objected to the same, the court
O.P.(C) No.563/2015
below has fixed the upset price at Rs.4,00,000/- as per
Ext P2 order. Ext P2 order is erroneous and unjust.
Hence, the original petition.
3. Heard; Sri. C.K. Pavithran, the learned
counsel appearing for the petitioner and Sri. A.N.
Santhosh, the learned counsel appearing for the
respondent.
4. The point is, is there any illegality in Ext P2
order?.
5. On an evaluation of the pleadings and
materials on record, it is seen that the court below has
by a laconic order fixed the upset price of the
execution schedule property at Rs.4,00,000/-.
6. The second proviso to sub-rule 2 of Rule 66 of
Order 21 of the Code of Civil Procedure, 1908(in short
'Code') specifically mandates that the court shall fix
O.P.(C) No.563/2015
the value of the property on the estimate furnished by
either or both the parties to the execution petition.
7. In the case on hand, indisputably, there is
nothing on record to substantiate that either of the
parties have filed an estimate, so as to enable the court
to fix the upset price of the property. Therefore, it is to
be assumed that the court below has on its own
volition fixed the upset price at Rs.4,00,000/-, which is
in hostile violation of the second proviso to sub-rule 2
of Rule 66 of Order 21 of the Code. Moreover, at this
distance of time, i.e., after a lapse of more than eight
years, I am of the definite view that the court below
has to be directed to reconsider and re-fix the upset
price of the property, as contemplated under the Code.
Resultantly, in exercise of the supervisory powers
of this Court under Article 227 of the Constitution of
India, I dispose of the original petition as follows:
O.P.(C) No.563/2015
(i) Ext P2 order is set aside.
(ii)The Court of the Additional Subordinate Judge,
North Paravur, is directed to consider and
dispose of E.P.No.92/2013, in accordance with
law, as expeditiously as possible, at any rate,
within a period of three months from the date
of receipt of a certified copy of this judgment,
following the mandate contemplated under the
Code.
(iii) The parties are directed to appear before the
court below on 25.05.2023.
Sd/-
C.S.DIAS,JUDGE
DST/31.03.2023 //True copy/
P.A.To Judge
O.P.(C) No.563/2015
APPENDIX
PETITIONER EXHIBITS:
EXT.P1 TRUE COPY OF EXECUTION PETITION DATED
11.4.2013
EXT.P2 TRUE COPY OF ORDER DATED 9.1.2015.
RESPONDENTS' EXHIBITS: NIL
