M.N. Chandran v. K.M. Muhammed

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 14[TH] DAY OF JULY 2021 / 23RD ASHADHA, 1943** **OP(C) NO. 1858 OF 2016** **OS 115/1999 OF SUB COURT, PERUMBAVOOR, ERNAKULAM** ## **PETITIONER/JUDGMENT DEBTOR** **M.N. CHANDRAN AGED 60 YEARS S/O.NARAYANAN, AGED 60 YEARS, MUKILACKAL (H), KANINADU KARA, PUTHENCRUZ VILLAGE, KUNNATHUNADU TALUK, KANINADU P.O., ERNAKULAM.** **BY ADVS. SRI.G.KRISHNAKUMAR SMT.M.L.REMYA** ## **RESPONDENT/DECREE HOLDER** **K.M. MUHAMMED, S/O. KOCHUMUHAMMED, KARIKKUZHIYIL (H), VAZHAPPILLY KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA, PIN682028.** **BY ADVS. SRI.MATHEW CHERIAN SRI.H.SIVARAMAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 7.7.2021, THE COURT ON 14.07.2021 DELIVERED THE FOLLOWING:** OPC 1858/2016 2 ## **JUDGMENT** ## **Dated : 14[th] July, 2021** 1. Petitioner is the judgment-debtor in E.P.60/2015 in O.S.115/1999 on the file of Sub Court, Perumbavoor. This O.P has been filed aggrieved by the order dated 20.7.2016 of the Sub Judge ordering the sale of the property described in the draft sale proclamation. 2. According to the petitioner, a specific contention that the petitioner is an agriculturist entitled for benefit under Sec.60(c) of the Code of Civil Procedure (hereinafter referred as 'the Code') has been specifically raised in the objection but it has not been considered properly by the Execution Court. It is also his contention that the property would fetch value of Rs.5 Lakhs per cent, but without any basis the Court accepted the valuation shown in the sale proclamation filed by the decree holder. A part of the property would have been sufficient to satisfy the decree but the entire property was proclaimed to be sold. The procedures OPC 1858/2016 3 prescribed under Rule 330 of the Civil Rules of Practice also not complied since no encumbrance certificate has been produced by the respondent/decree holder. There is a two storied concrete building in the scheduled property and the value of it has not been considered while accepting the value shown in the proclamation. In short, according to the learned counsel, the impugned order ordering proclamation and sale of the property has to be set aside. 3. The learned counsel for the respondent/decree holder, on the other hand, would contend that all the objections raised by the petitioner has been answered by the learned Sub Judge and no evidence has been adduced by the petitioner to prove any of the contentions. It is also his contention that in spite of passing a decree for realization of money, no payment has been made and from 2016 onwards the matter is pending without making any payment and hence according to him, there is no merit in the original petition. 4. Heard both sides. Lower court records in OPC 1858/2016 **==> picture [8 x 9] intentionally omitted <==** - E.P.60/2015 was called for and both sides were heard. 5. Based on the above, the following points arise for consideration: - (i) Whether the benefit claimed under Sec.60(c) of the Code has not been properly considered. - (ii) Whether value of the property shown in the proclamation is very low - (iii) Whether only part of property would have been sufficient to satisfy the decree debt. 6. Point No.(i) – The petitioner/judgment debtor has got a specific contention that he is an agriculturist and an agricultural labourer. Hence the property cannot be sold in execution of the decree as per Sec.60(c) of the Code of Civil Procedure,1908(hereinafter be stated as Code). It is stated in the impugned order that the petitioner has sought exemption under Sec.60(c) of the Code since the land is an agricultural land. But from the valuation certificate produced by the decree holder the land sought to be sold is a residential plot and it is further found that OPC 1858/2016 5 though the property is found attached already, the attachment order was not challenged. It appears that the reasoning of the learned Sub Judge is without properly understanding the scope of Sec.60(c) of the Code. It is apposite in this context to extract Sec.60(c) which reads as follows : Property liable to attachment and sale in execution of decree - Provided that the following particulars shall not be liable to such attachment or sale, namely :- (a)............. (b)............. (c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer or a domestic servant and occupied by him. 7. Sec.60(c) exempts the houses and other buildings and land immediately appurtenant there to and are necessary for the enjoyment of an agriculturist. The term 'agriculturist' is not defined in the Code. OPC 1858/2016 6 8. This Court had occasion to consider this aspect in **Mathew v. Bank of Cochin Ltd and Others (1982 KLT 274 = 1982 KHC 69).** In that while considering Sec.60(c) of the Code, it has been held that agriculturist is a person depending for his maintenance on tilling soil and he is unable to maintain himself otherwise. 9. In **Pathmavathi v. Sheeja (2016 (1) KLT 560 = ILR 2016 (2) Ker. 127)** a Division Bench of this Court had occasion to consider the scope of Sec.60(c) of the Code and the duty of the Court while such a defence is taken up by a judgment-debtor. It has been held that every Court, while considering a claim under Proviso to Sec.60(c), should be cautious enough to evaluate the evidence and is duty bound to uphold exceptions under the main provision and thereby protect avowed object of the law makers. 10. In this case the petitioner raised a specific contention in the objection that he is an agriculturist entitled for the benefit of Sec.60(c) of the Code. But the learned Sub Judge OPC 1858/2016 7 has refused the benefit stating that the valuation certificate produced by the decree holder showed that it is a residential plot. So the fact whether the house in question which is sought to be sold is that of an agriculturist has not been considered and a finding in that regard has not been entered into. So the impugned order is not sustainable on that ground itself. 11. Point:No.(ii) - Petitioner has also got a strong objection with regard to the valuation of property. The learned counsel for the petitioner brought my attention to **Raman alias Raman Kunju v. Kudavechoor S.N.D.P.Sakhayogam (1970 KHC 1)** wherein while dealing with Order 21 Rule 66(2) it was held that in cases where considerable disparity is there between the value given by the judgment-debtor and the value given by the decree holder, the Court has to specify every other thing which will enable the purchaser to judge the nature and value of property and the enquiry should not be a detailed one but an independent enquiry so as to determine the reasonable value. OPC 1858/2016 8 It is also held that mode of enquiry is left to the executing Court. 12. This Court in **K.V.Thomas v. Malabar Industrial** **Co.Ltd. [1962 KLT 315]** has held that while proceeding against the property of a judgmentdebtor for compulsory sale in execution, law and fairness require the Court to ensure that the judgment-debtor is not unduly harassed in his misfortune and to adopt all reasonable means to secure a reasonable price for the property at the Court sale. 13. In **Chandradas K.P. v. A. Nizar and Ors. [2009 (3) KHC 841 : ILR 2009 (3) Ker.763]** it has been held that it is the obligation of the Court to ensure that the judgment-debtor whose property is being sold is entitled to a fairly accurate description of his property so as to secure the presence of such class of bidders who would make fair bids of the property having regard to the size, location and other features of the property. 14. In this case according to the petitioner property would fetch a value of Rs.5 Lakhs per OPC 1858/2016 9 cent. The Execution Court followed the valuation shown in the valuation certificate and fixed the value of property at Rs.1,15,000/- per Are and it is further found that the Execution Petition has been filed for Rs.6,71,275/- and hence it was found that the property described in the draft sale proclamation is liable to be sold. As rightly contended by the learned counsel, the value of the house in the property has not been taken into account at all. So also even though it is stated that if the judgment-debtor has got any objection with regard to the valuation, he can suggest the value and proclamation can be made including that value also and that the Court has no duty to fix the upset price, Without any direction to incorporate the value of the property made by the petitioner/judgment-debtor the Execution Court has directed to take steps for proclamation and sale. There is no direction in the order to incorporate the valuation of the judgment-debtor in the proclamation. Sale proclamation enclosed with the records would go to show that the market value OPC 1858/2016 10 alone has been shown as Rs.8 Lakhs. The value of the property shown in the objection as Rs.5 Lakhs per cent and further objection that the building will fetch considerable value also have not been taken into account. It is the specific case of the petitioner that the property is facing a public road on the south. Sale proclamation fortifies that contention. So it appears that sale of the property was ordered to be sold without proper application of mind by the Execution Court. 15. Point No.(iii) - The learned counsel for the petitioner has also got objection with regard to the direction given to sell the entire property . It is the duty of the executing Court to consider whether sale of a part of property would be sufficient to satisfy the decree debt. In **Narasayya v. Subba Rao and Another (AIR 1990 SC 119 = 1990 KHC 221)** it is held that the execution sale should ensure that only the property sufficient to satisfy the decree alone should he sold and it is a mandate of the legislation and is not a mere discretion of the Court. In **Sukumaran** OPC 1858/2016 11 **K.A. v. Permanent Benefit Fund ltd (2011 (2) KHC 955 = 2011 (3) KLT 53),** the learned Single Judge of this Court held that the Court should ensure that only the property sufficient to satisfy the decree alone should be sold. 16. In the present case even the sale proclamation would show the value of the property as Rs.8 Lakhs though the decree debt is only Rs.6,88,000/-. But the entire property was directed to be proclaimed for sale. 17. The petitioner would next content about the non-compliance of Rule 330 of Civil Rules of Practice, since no affidavit as contemplated there in has been filed and encumbrance certificate covering a period of 12 years prior to the date of attachment is also not produced. On perusing the lower court records in the above E.P encumbrance certificate from 1.1.1998 to 18.2.2016 is seen produced. Copy of the attachment report of Ameen would show that attachment was effected on 29.7.99. But no affidavit as provided in the Rule has been filed. OPC 1858/2016 12 18. **Chandradas K.P. v. Nizar and Others (2009 (3)** **KHC 841)** is relied on by the learned counsel wherein it has been held that a decree holder is bound to file in Court an affidavit by himself or by some other person acquainted with the property giving the particulars prescribed under O.21 R.66 CPC. It is also found therein that there is infraction of R.330 of the Kerala Civil Rules of Practice as per which the decree holder was bound to file in Court an affidavit. Same is the position here. 19. In effect on an evaluation of the impugned order and the proclamation of sale and the connected records, it can reasonably be concluded that the impugned order passed by the learned Sub Judge, is without properly evaluating the contentions raised in the objection filed by the petitioner and hence caused miscarriage of justice to the petitioner/judgment-debtor and hence it is liable to be set aside. 20. In the result, Original Petition allowed and the impugned order is set aside. The Execution OPC 1858/2016 13 Court is directed to conduct an enquiry with due notice to both sides and pass fresh orders after hearing both sides not later than 3 months from the date of receipt of copy of this order. Sd/- **M.R.ANITHA, Judge** Mrcs/8.7. OPC 1858/2016 14 ## **APPENDIX OF OP(C) 1858/2016** EXHIBITS EXHIBIT P1 TRUE COPY OF THE EP 60/2015 IN OS NO. 115/1999 ON THE FILES OF SUB COURT, PERUMBAVOOR. EXHIBIT P2 TRUE COPY OF THE DRAFT SALE PROCLAMATION IN EXHIBIT P1 EP. EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED TO EXHIBIT P2 DRAFT SALE PROCLAMATION. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 20-07-2016 IN E.P.NO. 60/2015 IN OS.NO. 115/1999 ON THE FILES OF THE SUB COURT, PERUMBAVOOR. TRUE COPY