Jiji Elamanna v. Calicut City Service Co-Operative Bank Ltd

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944 ``` ## `OP(C) NO. 247 OF 2023` ``` AGAINST THE ORDER DATED 20.10.2022 IN E.A.NO.2080/2022 IN EP 159/2020 OF I ADDITIONAL SUB COURT, KOZHIKODE ``` ## `PETITIONER:` ``` JIJI ELAMMANNA, AGED 35 YEARS THARAYIL HOUSE, KADALUNDI, CALICUT, PIN – 673302 ``` ``` BY ADVS.SRINATH GIRISH P.JERIL BABU V.NAMITHA PRASUDHA.S ``` ## `RESPONDENT:` ``` CALICUT CITY SERVICE CO-OPERATIVE BANK LTD NO.D 2777, REP. BY ITS GENERAL MANAGER, CITY BANK BUILDING, CITY BANK JUNCTION, CHALAPURAM, CALICUT, PIN – 673002 ``` ``` BY ADVS.SWATHI KUMAR B.S. ANITHA RAVINDRAN(K/296/1990) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C)No.247/2023 ``` ``` -:2:- ``` Dated this the 22[nd] day of February, 2023 ## **J U D G M E N T** The original petition is filed to set aside Ext P4 order passed in E.A.No.2080/2022 in E.P.No.159/2020 by the Court of the Subordinate Judge, Kozhikode. The petitioner is the judgment debtor and the respondent is decree holder. 2. The factual matrix leading to Ext P4 order, in a nutshell, are: - (i) An ex-parte award was passed in favour the respondent against the petitioner in A.R.C.No.1234/2016 by the Joint Registrar of Co-operative Societies (Arbitrator), to realise an amount of Rs.45,32,483/- with future interest. - (ii) The respondent laid the award to execution by filing E.P.No.159/2020, and proceeded against the properties of the petitioner. - (iii) The petitioner opposed the execution petition, ``` O.P.(C)No.247/2023 ``` ``` -:3:- ``` inter alia, contending that only a portion of the property need be sold to realise the decree debt. - (iv) Although an auction was conducted, there were no bidders. Later, the respondent filed an application under Order 21 Rule 72A of the Code of Civil Procedure, 1908 (in short,’Code’), seeking leave to bid in the auction. The petitioner objected to the application. However, leave was granted. - (v) Subsequently, the petitioner filed E.A.No.2080/2020 (Ext P3) to appoint an Advocate Commissioner. - (vi) The court below, by the impugned Ext P4 order, rejected Ext P3 application. - (vii) Ext P4 is ex facie illegal and unsustainable in law. Hence, the original petition. 3. Heard; Sri. Srinath Girish, the learned counsel appearing for the petitioner and Sri. B.S. ``` O.P.(C)No.247/2023 ``` ``` -:4:- ``` Swathi Kumar, the learned counsel appearing for the respondent. 4. The short, but interesting question is, whether there is any illegality in Ext P4 order?. 5. Sri. Srinath Girish, placing reliance on the decision in **Anto Nitto v. South Indian Bank** [1997 KHC 563], contended that once the Execution Court has granted leave to the decree holder to participate in the auction under Order 21 Rule 72 of the Code, then necessarily, reserve price has to be fixed. The Division Bench in the above decision, has specifically held that an Advocate Commissioner can be appointed to assess the value of the property for the purpose of fixation of reserve price. Unfortunately, the court below has not appreciated the above contention in its proper legal perspective, instead has rejected Ext P3 application. ``` O.P.(C)No.247/2023 ``` ``` -:5:- ``` 6. Sri. B.S. Swathi Kumar, opposed the above submission and vehemently contended that in **Ammini v. K.V. Vibeesh and Ors.** [2019(3) KHC 646], another Division Bench of this Court has held that when there is a charged decree, which is akin to a mortgage decree, there is no question of selling the property in lots or portions because the property has been covered by the mortgage and the entire property has to be sold. Thus, he supported the impugned order and urged the original petition to be dismissed. 7. On an appreciation of the rival contentions and analysing the ratio decidendi in **Anto Nitto** and **Ammini** (supra), a subtle distinction has to be drawn to reconcile the two binding precedents by holding that when the decree holder seeks leave to participate in the auction, then necessarily, the reserve price of the property is to be fixed, for which purpose an ``` O.P.(C)No.247/2023 ``` ``` -:6:- ``` Advocate Commissioner can be appointed to aid the court in fixation of the price. The very purpose of fixation of reserve price is to safeguard the interest of the judgment debtor, and ensure that the decree holder/ auction purchaser does not purchase the property for a song. On the contrary, when the decree holder does not participate in the auction, the principles laid down in **Ammini** (supra) gets attracted, and the property need not be sold in a portion. 8. Viewed in the above angle, I am of the firm view that the petitioner is to be granted an opportunity to file an application highlighting the above aspects before the court below, for the purpose of appointing an Advocate Commissioner to aid the court in fixing the reserve price of the property. In the result, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of ``` O.P.(C)No.247/2023 ``` ``` -:7:- ``` ## India, I dispose of the original petition as follows: - (i) The petitioner is permitted to file an application under Order 26 Rule 9 of the Code, for the purpose of appointment of Advocate Commissioner to aid the court in fixing the reserve price of the property. - (ii) The petitioner shall file the above application as expeditiously as possible, at any rate, within a period of 10 days from the date of receipt of a certified copy of this judgment. - (iii) The court below, shall after affording the respondent an opportunity to file his counter affidavit to the above application, consider and dispose of the application, in accordance with law, as expeditiously as possible. - (iv) Until such time orders are passed on the above application, all further proceedings in E.P.No.159/2020 of the Court of the Subordinate Judge, Kozhikode, shall be kept in abeyance. - (v) The court below is directed to dispose of ``` O.P.(C)No.247/2023 ``` ``` -:8:- ``` E.P.No.159/2020, in accordance with law, as expeditiously as possible. Sd/- ## **C.S.DIAS,JUDGE** DST/22.02.23 //True copy/ P.A.To Judge ``` O.P.(C)No.247/2023 ``` ``` -:9:- ``` ## `APPENDIX` ||`APPENDIX`| |---|---| |`PETITIONER`|`EXHIBITS`| |`EXHIBIT P1`|`A TRUE COPY OF THE AWARD DATED 31-01-`| ||`2017 IN ARC 1234/2016 OF JOINT`| ||`REGISTRAR OF CO-OPERATIVE SOCIETIES`| ||`(ARBITRATOR)`| |`EXHIBIT P2`|`A TRUE COPY OF E.P NO.159/2020 BEFORE`| ||`THE SUBORDINATE JUDGE - I ADDL.,`| ||`KOZHIKODE`| |`EXHIBIT P3`|`A TRUE COPY OF E.A. 2080/2022 IN E.P`| ||`NO.159/2020 BEFORE THE SUBORDINATE`| ||`JUDGE - I ADDL., KOZHIKODE`| |`EXHIBIT P4`|`A TRUE COPY OF THE ORDER DATED 20-10-`| ||`2022 IN E.A NO.2080/2022 IN E.P`| ||`159/2020 BEFORE THE SUBORDINATE JUDGE -`| ||`I ADDL., KOZHIKODE`| |`EXHIBIT P5`|`A TRUE COPY OF THE COUNTER STATEMENT IN`| ||`EP 159/2020 DATED 22-09-2021. ADL. SUB`| ||`COURT I, KOZHIKODE`| |`EXHIBIT P6`|`A TRUE COPY OF THE APPLICATION FILED AS`| ||`EA. 1049/2021 DATED 25-11-2021. ADL SUB`| ||`COURT I, KOZHIKODE`| |`EXHIBIT P7`|`A TRUE COPY OF THE COUNTER STATEMENT IN`| ||`EA. 1049/2021 ALONG WITH THE ACCOUNT`| ||`STATEMENT`| ``` RESPONDENTS’ EXHIBITS: NIL ```