K.A. Sukumaran v. Kerala Permanent Benefit Fund Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 ## **OP(C).No. 310 of 2011(O)** E.P.NO.216/2008 IN OS.234/2004 OF PRINCIPAL SUB COURT, PALAKKAD PETITIONER: 3RD JUDGMENT DEBTOR --------------------------------------- K.A.SUKUMARAN, AGED 33 YEARS, S/O.ANDIYAPPAN, KIZHAKKEPURA, MUNDUR, PALAKKAD. BY ADV. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH RESPONDENT: DECREE HOLDER ---------------------------- KERALA PERMANENT BENEFIT FUND LIMITED, REPRESENTED BY ITS MANAGER, ALUVA BRANCH, ALUVA, ERNAKULAM-683101. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** EXT.P1 COPY OF THE AFFIDAVIT FILED BY THE RESPONDENT/JUDGMENT DEBTOR IN E.P.NO.216/2008 IN O.S.NO.234 OF 2004 OF THE SUB COURT, PALAKKAD. EXT.P2 COPY OF THE OBJECTION FILED BY THE PETITIONER IN E.P.NO.216 OF 2008 IN O.S.NO.234 OF 2004 OF THE SUB COURT, PALAKKAD DATED 9.7.2009. EXT.P3 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN E.P.NO.216 OF 2008 IN O.S.NO.234 OF 2004 OF THE SUB COURT, PALAKKAD DATED 28.10.2010. EXT.P4 TRUE COPY OF THE EXECUTION PETITION AND ORDER SHEET IN THE EXECUTION PROCEEDINGS IN E.P.NO.216 OF 2008 IN O.S.NO.234 OF 2004 OF THE SUB COURT, PALAKKAD WITH TYPED COPY OF ORDER SHEET. ## **RESPONDENTS' EXHIBITS** : NIL ## //TRUE COPY// AHZ/ ## **K.T.SANKARAN, J.** ## **-----------------------------------------------------O.P.(C). NO. 310 OF 2011 O ------------------------------------------------------** ## **Dated this the 1[st] day of February, 2011** ## **JUDGMENT** The third judgment debtor in O.S.No.234 of 2004, Sub Court, Palakkad, challenges the order dated 17.12.2010 passed by the executing court directing sale of an extent of 51 cents of land for realisation of a sum of ` 9,06,213/- claimed in the Execution Petition. 2. The respondent obtained a decree for a sum of ` 7,34,126/together with interest. It is stated that the decree is a mortgage decree and that the decree itself provides for sale of only sufficient portion of the mortgaged property for realisation of the decree amount. 3. In the Execution Petition, notice was issued to the judgment debtors. The petitioner filed a counter statement dated 9.7.2009, in which, he contended that sale of two items of immovable properties is not required for realisation of the decree debt. Item 1 is having an extent of 1.82 acres. Item 2 consists of 51 cents. In the objection, it is stated that item 2 is a paramba and it would fetch a market value O.P.(C) NO.310 of 2011 O :: 2 :: of ` 25 lakhs. It was contended that sale of a portion of item 2 would be sufficient for realisation of the decree debt. 4. On the basis of the counter statement dated 9.7.2009, the executing court excluded item 1 from the purview of sale. Item 2 was directed to be sold for realisation of the decree debt. 5. Thereafter, draft sale proclamation was produced and the case was posted for settlement of proclamation. The petitioner filed objections dated 28.10.2010 to the notice under Rule 66 of Order XXI of the Code of Civil Procedure. In the objections, he raised a contention that item 2 property which was sought to be sold would fetch a market value of ` 25 lakhs. It was also contended that the property is situated on the side of the panchayat road and it will fetch a value of Rupees One lakh per cent. The petitioner contended that it is not necessary to sell the whole of item 2 for realisation of the decree amount. 6. The court below passed an order dated 17.12.2010, which is under challenge in this Original Petition, rejecting the contention ## O.P.(C) NO.310 of 2011 O :: 3 :: raised by the petitioner. The court below found that an order was passed on 18.5.2010 rejecting the contention of the petitioner that sale of a portion of item 2 would be sufficient for realisation of the decree debt. As per that order, the whole of item 2 was directed to be sold. Since the petitioner raised a contention that the estimated value of the property would be ` 25 lakhs, the executing court directed to incorporate in the sale proclamation the value suggested by the petitioner. 7. The learned counsel for the petitioner, Sri.R.Sudhish, submitted that the order dated 17.12.2010 is illegal and unsustainable. The counsel relied on the decisions in **P.K.Kuruvilla** v. **Corporation Bank** (2008 (1) KLT 604 = 2008 (1) KHC 258) and **Chandradas K.P** .v. **A.Nizar and others** (2009 (3) KHC 841). 8. Sri.O.Ramachandran Nambiar, the learned counsel appearing for the respondent/decree holder contended that the order dated 18.5.2010 would be a bar for considering the request made by the petitioner in the objection to the notice under Rule 66 of Order XXI of the Code of Civil Procedure. The court below rightly held that O.P.(C) NO.310 of 2011 O :: 4 :: the petitioner having not challenged the order dated 18.5.2010, the present contention could not be entertained. The counsel also relied on the decision in **Harishankar** v. **Syndicate Bank of India and others** (ILR 1996 (1) Kerala 756). ## 9. In **Ambati Narasayya** v. **M.Subha Rao and another** (AIR 1990 SC 119), the Supreme Court held that in an execution sale, the court should ensure that only the property sufficient to satisfy the decree alone should be sold. The Supreme Court held that it is a mandate of the legislature and it is not a mere discretion of the Court. Even if the property sought to be sold is one item, the contention of the judgment debtor that a portion of the same would be sufficient to satisfy the decree should be considered. The decision of the Supreme Court in Ambati Narasayya's case was followed in several other decisions of the Supreme Court. 10. In ILR 1996 (1) Kerala 756, a Division Bench of this Court held thus: “11. The other decision relied on by Mr.Nambiar in _Ambati Narasayya_ v. _M.Subba Rao_ is not applicable to the facts of our case. Therein ten acres of land were O.P.(C) NO.310 of 2011 O :: 5 :: sold in auction for Rs.17,000 in execution of a decree for Rs.2,000. In such a background the court felt that sale of the entire property for realising such a low amount is bad. In the present case on hand the total amount due under the decrees is more than Rs.3,26,000. In such circumstances, there is nothing wrong in the entire property of 68 ½ cents being brought to sale in the court auction. There are some other observations in this judgment which are to the same effect as we have quoted earlier.” 11. The petitioner contended in the objections dated 9.7.2009 as well as in the objection dated 28.10.2010 that the property sought to be sold would fetch a price of ` 25 lakhs. However, in the objections dated 28.10.2010, he raised a contention that the centage value of the land would be Rupees One lakh. If so, the value of the property would be more than ` 50 lakhs. But the petitioner did not say that the property would fetch a value of ` 50 lakhs, but be reiterated the contention raised in 2009 that the market value of the property would be ` 25 lakhs. The court below, by way of abundant caution, directed to incorporate in the sale proclamation the value suggested by the petitioner in the objection filed in 2010. That is a sufficient safeguard to protect the interests of the petitioner. O.P.(C) NO.310 of 2011 O :: 6 :: 12. As per the order dated 18.5.2010, the court below negatived the contention of the petitioner that sale of a portion of item 2 would be sufficient to satisfy the decree debt. That order was not challenged by the petitioner. Even in the present Original Petition, there is no case that the order dated 18.5.2010 was erroneous. Res judicata applies not only to suits but to execution proceedings as well. Explanation VII to Section 11 of the Code of Civil Procedure provides that the provisions of the Section shall apply to a proceeding for the execution of a decree. Therefore, a matter which was heard and finally decided in the execution proceedings would bind the parties in another Execution Petition or at a later stage of the same execution proceedings. That the principle of res judicata would apply to different stages of the same proceedings is well settled. (See **Satyadhyan Ghosal and others** v. **Deorajin Debi and another** (AIR 1960 SC 941); **Prahlad Singh** v. **Col. Sukhdev Singh** (AIR 1987 SC 1145); **Jayalakshmi** v. **Shanmugham** (1987 (2) KLT S.N.Case 67 Page 47.) It is true that a decision in the execution proceeding on the question of value of the property, as such, may not constitute res judicata at a later stage of O.P.(C) NO.310 of 2011 O :: 7 :: the execution proceedings where the question arises whether the value of the property has undergone change. In **Govinda Bhat** v. **Sham Bhat** (2000 (1) KLT 278), it was held that finding in an earlier suit on the question of value of arecanut and the question that the rate prevailing in a particular area should be taken into account, would not constitute res judicata in a later suit between the same parties. It was held: “That will not act as res judicata, because on a later stage, because of the market fluctuations and due to innovative technologies in the field of production, the price may vary in either direction.” In the present case, there is no case for the petitioner that there is change in the value of the property or that the value of the property has gone up. In the objection filed in 2009, he stated that the estimated value of the property would be ` 25 lakhs. In the objection filed in 2010 also he reiterated that contention. Of course, in the second objection, he contended that the centage value of the property would be Rupees One lakh. Even if the centage value of the property is higher, that need not necessarily represent the market ## O.P.(C) NO.310 of 2011 O :: 8 :: value of a larger extent. The petitioner/judgment debtor is the owner of the property. He knew the value of the property better than the court. He stated that the estimated value of the property would be ` 25 lakhs. That was the price which he stated earlier also. Therefore, there was no change of circumstances warranting a change in the order passed by the court below. If so, the order dated 18.5.2010 would operate as res judicata barring the petitioner from raising the same contention which was raised by him and repelled by the executing court earlier. Sufficient safeguards have been made by the court below for protecting the interests of the judgment debtor. The contentions put forward by the judgment debtor are bereft of bona fides. There is no ground to interfere with the order passed by the court below. Accordingly, the Original Petition is dismissed. **(K.T.SANKARAN) Judge** ahz/