Kerala High Court
Sudheer Vazhakalil vs Unnikrishnan on 8 November, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
FAO No.38 of 2018 1
2024:KER:83310
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
FAO NO. 38 OF 2018
AGAINST THE ORDER DATED 06.01.2018 IN E.A.NO.145/2017 IN EP
NO.90/2014 IN OS NO.160 OF 2012 OF SUBORDINATE JUDGE'S COURT
VADAKARA
APPELLANT/PETITIONER/RESPONDENT:
SUDHEER VAZHAKALIL
S/O. KRISHNAN, AGED 43 YEARS,KRISHNAPURAM HOUSE,
VATAKARA AMSOM, DESOM,KOZHIKODE DISTRICT
BY ADVS.
SRI.R.PARTHASARATHY
SMT.SEEMA
RESPONDENT/RESPONDENT/PETITIONER:
UNNIKRISHNAN
S/O. NARAYANAKURUP, PADASSERY KOYILOTH,THIRUVALLOOR
AMSOM DESOM,VATAKARA TALUK,KOZHIKODE DISTRICT 673 541
BY ADV SRI.ZUBAIR PULIKKOOL
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
08.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
FAO No.38 of 2018 2
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SATHISH NINAN,
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------
FAO. No. 38 of 2018
---------------------------------
Dated this the 8th day of November 2024
JUDGMENT
P.V.BALAKRISHNAN,J
This appeal is filed by the petitioner in E.A.No.145/2017 in
E.P.No.90/2014 in O.S.160/2012, aggrieved by the order passed therein
dismissing his petition filed under Order 21 Rule 90 CPC, by the Sub
Court, Vadakara.
2. It is the contention of the appellant/judgment debtor that
his property having an extent of 1.25 acres of land was put in auction
sale for realising the decree amount of Rs.32,57,922/- by fixing the
upset price at a very low rate of Rs. 29,00,000/-. It is also his
contention that the upset price was thus fixed on an application filed by
the decree holder as E.A.No.112/2017, when on the previous occasion
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the auction sale conducted by fixing the upset price as Rs.93,75,000/-,
failed due to non bidding. It is his further contention that the executing
court has arbitrarily and without any reasons reduced the upset price to
Rs.29,00,000/- at the request of the decree holder and the same is a
material irregularity causing substantial injury to the appellant.
3. Per contra, the contention of the respondent/decree holder is
that, initially the property was put on auction sale by fixing upset price
at Rs.29,30,000/- and the same did not materialse since the bidder did
not make the requisite deposit. It is also his contention that
subsequently the property was again put on sale by fixing the upset
price at Rs.93,75,000/- and the same ended in failure as there were no
bidders. Hence, the Executing Court, after considering the afore facts,
reduced the upset price to Rs.29,00,000/- and ordered sale.
4. Heard both sides.
5. On an appraisal of the materials on record, it is to be seen that
the property was put on sale on 20/11/2017, by fixing the upset price
as Rs.29,00,000/-. The upset price was thus fixed by the executing court
as per order in E.A.No.112/2017, dated 19/10/2017. The afore order
shows that the said application was filed by the decree holder to reduce
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the upset price from Rs.93,75,000/- to Rs.25,00,000/- since, there were
no bidders. It is to be taken note that the appellant has opposed the
said application and has contended that the property would fetch a much
higher value. The order in E.A.No.112/2017 reveals that the executing
court has, without assigning any reasons, reduced the upset price to
Rs.29,00,000/- and has ordered to proclaim and sell the property. The
executing court also did not take into consideration the report of the
Advocate Commissioner assessing the market value of the property,
while passing the afore order. Such drastic reduction of the upset price
without assigning any reasons is a material irregularity and will
undoubtedly, cause substantial injury to the judgment debtor/appellant.
If so, we are of the considered view that the sale conducted on
20/11/2017 cannot sustained.
In the result, this appeal is allowed as follows;
i) The order dated 6/1/2018 in E.A.145/2017 in EP 90/2014 in OS
160/2012 passed by the Sub Court, Vadakara is set aside and EA
145/2017 is allowed.
ii) There shall be a direction to the executing court to proceed
afresh with the sale and complete the proceedings within six months
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from the date of receipt of a copy of this judgment.
iii) Both sides are directed to appear before the executing court on
17/12/2024.
Sd/-
SATHISH NINAN
Judge
Sd/-
P.V.BALAKRISHNAN
Judge
dpk
