High Court of KeralaSingle Judge2017-10-26Original petition disposed of with a conditiona...

Ramachandran E S/o Kunhiraman Nair v. E. Ajithkumar and E. M. Ashok Kumar

Case / Petition Number:OP(C).No. 849 of 2016 (O)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anil K. Narendran
Judgment Date: 2017-10-26
Court Decision / Holding: The High Court disposed the petition by setting aside the order dated 02.02.2016 (Ext.P1) in EP 445/2014 in OS 833/2012, on condition that the petitioner deposit ₹3,00,000 within four weeks. Upon receipt of the deposit, the execution court shall reconsider the matter and pass appropriate orders within four months, guided by Augusthy M.D. v. Catholic Syrian Bank Ltd. and the principle that only a portion of the attached property may need to be sold to satisfy the decree. If the petitioner fails to deposit within the time limit, the execution court shall proceed with sale of the entire attached property in terms of the original order. Both parties shall appear before the Execution Court on 20.11.2017.
Final Disposition: Original petition disposed of with a conditional order: set aside the sale in EP 445/2014, OS 833/2012, upon deposit of ₹3,00,000 within four weeks; execution court to reconsider and proceed, if necessary, within four months; failure to deposit leads to sale of the entire attached property as originally ordered; matter to be re-listed for appearance on 20.11.2017.

Parties to the Case

Appellants / Petitioners

Ramachandran E s/o Kunhiraman Nair

Respondents

E. Ajithkumar s/o Chabdrasekhar Kurup
E. M. Ashokkumar s/o Govinath a Menon

Legal Representation & Advocates

Counsels for Petitioners

• Sri V. T. Madhavananunni
• Sri V. A. Satheesh

Counsels for Respondents

• Sri P. A. Harish
• Sri V. V. Surendran

Case Synopsis & Summary

Ramachandran E., the judgment debtor in EP 445/2014 in OS 833/2012 on the file of the 1st Additional Sub Court, Kozhikode, petitions under Article 227 to set aside the sale of attached properties conducted on 02 February 2016. The attached property comprises 31.75 cents with a shed at Cheruvannur, Kozhikode district. The executing court fixed an upset price of ₹17 lakhs and ordered sale of the entire property. The debtor argued that the land’s value is higher than ₹10 lakhs per cent, and that a smaller portion would suffice to satisfy the decree; sale of the entire property would be prejudicial and contrary to statutory obligations under Order XXI CPC. The court's reasoning references Order XXI, Rule 64 and Rule 66(2), emphasizing that the court must first decide whether full sale is necessary and, if a portion is adequate, proceed with sale of that portion. It cites Augusthy M.D. v. Catholic Syrian Bank Ltd. and Ambati Narasayya v. Subba Rao to support the obligation to consider partial sale and proper proclamation. The High Court disposes of the petition by setting aside the 02.02.2016 sale order on condition that the petitioner deposits ₹3,00,000 within four weeks; upon deposit, the execution court will reconsider the matter and, if needed, proceed within four months, while allowing decree-holders to withdraw the deposited amount. If the debtor defaults, the sale may proceed as previously ordered.

Provisions of Law Cited

Constitution of India, Article 227Code of Civil Procedure, 1908 - Order XXI, Rule 64Code of Civil Procedure, 1908 - Order XXI, Rule 66(2)

Legal Doctrines & Maxims

Obligation to sell only such portion of attached property as is necessary to satisfy the decree under Order XXI, Rules 64 and 66(2)
Proportional sale doctrine under Order XXI CPC (partial sale when possible)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that the execution court erred in ordering sale of the entire 31.75 cents property and fixed an upset price of ₹17 lakhs, when a sale of a mere portion could satisfy the decree. He asserts that the decree dated 10.01.2014 could be discharged by selling a smaller portion, particularly since the value per cent claimed exceeds ₹10 lakhs. He contends that Order XXI, Rule 64 and Rule 66(2) obligate the court to determine whether the entire property or a part is needed and that a full sale would cause unnecessary prejudice to the debtor. He further notes that the debtor had no representation at the time of the order, making the sale procedurally or legally vulnerable. The remedy sought is to set aside the sale and permit reconsideration with safeguards, aligned to precedents cited.

Contentions of Respondents

The decree holders argue that sale of the attached property is the standard and appropriate remedy to satisfy the decree, and that the upset price and sale were conducted as per law. They rely on the record of the execution petition and contend that a full sale was necessary to realize the decree amount; the absence of debtor representation does not invalidate the sale under the cited provisions, but the court may exercise discretion to rectify procedural issues. The respondents emphasize securing the decree’s satisfaction efficiently and preventing undue delay or piecemeal dispossession.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Augusthy M.D. v. Catholic Syrian Bank Ltd.	2014 (3) KHC 669	Positive	Cited for the proposition that, in execution, the court must assess whether the entire attached property or only a portion is necessary to satisfy the decree and that the court should order sale of a portion if possible; supports the obligation under Order XXI CPC.
Ambati Narasayya v. Subba Rao and another	1989 Supp (2) SCC 693	Positive	Apex Court’s view that the sale of only a portion of property may be required to satisfy the decree, reinforcing the court’s duty to consider partial sale under Order XXI CPC.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 26TH DAY OF OCTOBER 2017/4TH KARTHIKA, 1939** ## **OP(C).No. 849 of 2016 (O)** ## **-------------------------E.P.NO.445/2014 IN OS NO.833/2012 1ST ADDL. SUB COURT, KOZHIKODE ----------------** **PETITIONER :** - **------------------** **RAMACHANDRAN E S/O. KUNHIRAMAN NAIR, AGED 78 YEARS, KULIRMA, VELIPRAM AMSOM AND DESOM, POST RAMANATTUKARA, KOZHIKODE DISTRICT.** **BY ADVS.SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH** **RESPONDENTS :** **----------------------** **1. E. AJITHKUMAR S/O.CHABDRASEKHARA KURUP, AGED 51 YEARS, MANATTUPADIKKAL, PAROPPADY, CHEVAYUR AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE - 673 009.** **2. E.M.ASHOKKUMAR, S/O. GOVINATHA MENON, AGED 62 YEARS, SIKHAS, ERUVALLOOR AMSOM AND DESOM, POST CHELANUR, KOZHIODE TALUK.** - **R1 & R2 BY ADV. SRI.P.A.HARISH BY ADV. SRI.V.V.SURENDRAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 26-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **OP(C).No. 849 of 2016 (O) -----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **------------------------------------** **EXT.P1: TRUE COPY OF THE EXECUTION PETITION NO.445 OF 2014 IN O.S.NO.833 OF 2012 INCLUDING ALL DOCKET ORDERS DATED 02/02/2016.** **EXT.P2: TRUE COPY OF COUNTER STATEMENT FILED BY THE PETITIONER IN E.P.NO.445/2014 DATED 13/10/2014** **EXT.P3: TRUE COPY OF SALE CERTIFICATE IN FAVOUR OF PETITIONER DATED 30/01/2009 EXT.P4: TRUE COPY OF SALE DEED NO.813/2014 OF S.R.O., FEROKE DATED 05/03/2014** **RESPONDENT(S)' EXHIBITS : NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **bp** ## **ANIL K.NARENDRAN, J** **......................................... O.P.(C) No. 849 of 2016 ...............................................** Dated this the 26[th] day of October, 2017 ## **JUDGMENT** The petitioner, who is the judgment debtor in E.P.No.445 of 2014 in O.S.No.833 of 2012 on the file of the 1[st] Additional Sub Court, Kozhikode, is before this Court in this original petition filed under Article 227 of the Constitution of India, seeking an order to set aside the sale of the attached properties ordered in that execution petition on 02.02.2016, as discernible from Ext.P1 proceedings in E.P.No.445 of 2014. 2. On 18.03.2016, when this original petition came up for admission, this Court admitted the matter on file and issued notice to the respondents by speed post. This Court has also ordered that, the sale conducted in E.P.No.445 of 2014 shall not be confirmed until further orders. 3. Heard learned counsel for the petitioner/judgment debtor and also learned counsel for the respondents/decree holders. 4. The sole issue that arises for consideration in this original petition is as to the legality or otherwise of the sale of the attached property in E.P.No.445 of 2014, conducted on 02.02.2016. O.P.(C) No. 849 of 2016 2 5. The attached property is having an extent of 31.75 cents with a shed, which is situated in Cheruvannur amsom desom in Kozhikode district. On receipt of notice, the judgment debtor filed Ext.P2 objections in E.P.No.445 of 2014, contending that the land value of the property is more than ₹10 Lakhs per cent and that sale of an extent of 3 cents would be sufficient to satisfy the decree debt. However, as discernible from the proceedings in E.P.No.445 of 2014, which is placed on record as Ext.P1, the execution court fixed the upset price as ₹17 Lakhs, taking into consideration the fair value notification, and ordered sale of the property. 6. Going by the provisions under Order XXI, Rule 64 of the Code of Civil Procedure, 1908 any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof, as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same. 7. In **Augusthy M.D. v. Catholic Syrian Bank Ltd. (2014 (3) KHC 669)** this Court held that, the statutory mandate under Order XXI, Rule 64 of the Code is that any O.P.(C) No. 849 of 2016 3 court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same. It is further clarified under Order XXI, Rule 66(2) that proclamation shall be drawn up specifying as fairly and accurately as possible the property to be sold or where a part of the property would be sufficient to satisfy the decree, such part. In all execution proceedings, the court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may be seen necessary to satisfy the decree. If the property is large and the decree to be satisfied is small, the court shall bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree holders. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provision of law, only such portion of the property should be sold. This is not just a discretion, but an obligation imposed on the court. This is the view of the Apex Court in **Ambati Narasayya v. M.** O.P.(C) No. 849 of 2016 4 ## **Subba Rao and another [(1989) Supp (2) SCC 693]** . 8. Admittedly, the attached property is having an extent of 31.75 cents with a shed, which is situated in Cheruvannur in Kozhikode district. Relying on Ext.P4 sale deed the learned counsel for the judgment debtor would contend that sale of a portion of the attached property is sufficient to clear the balance decree debt. From the proceedings in E.P.No.445 of 2014, which is placed on record as Ext.P1, it is not discernible as to whether the execution court has considered the mandate of Order XXI, Rule 64 and Rule 66(2) of the Code while fixing the upset price as 17 Lakhs and₹ ordering sale of the entire attached property. In such circumstances, the order dated 02.02.2016 of the execution court in E.P.No.445 of 2014 in O.S.No.833 of 2012 fixing the upset price as 17 Lakhs and ordering sale of the entire₹ attached property cannot be sustained in law. However, considering the fact that the decree sought to be executed in E.P.No.445 of 2014 is one dated 10.1.2014 and that, on 02.02.2016 when the execution court ordered sale of the entire attached property there was no representation for the judgment debtor, the said order can be set aside only on O.P.(C) No. 849 of 2016 5 payment of a portion of the decree debt. 9. In the result, this original petition is disposed of setting aside the order dated 02.02.2016 of the 1[st] Additional Sub Court, Kozhikode in Ext.P1 proceedings in E.P.No.445 of 2014 in O.S.No.833 of 2012, on condition that the petitioner/ judgment debtor deposits a sum of **₹3,00,000/-** (Rupees three lakhs only) before the execution court, within a period of **four weeks** from the date of receipt of a certified copy of this judgment. On such deposit being made, the execution court shall reconsider the matter and pass appropriate orders in E.P.No.445 of 2014 in O.S.No.833 of 2012, keeping in mind the law laid down by this Court in **Augusthy's case** referred to supra, as expeditiously as possible, at any rate, within an outer time limit of four months from the date of production of a certified copy of this judgment. 10. On such deposit of 3,00,000/- (Rupees three lakhs₹ only) being made, the execution court shall permit the respondents/ decree holders to withdraw the said amount. In case of any default committed by the petitioner/judgment debtor in depositing **₹3,00,000/-** (Rupees three lakhs only) before the execution court as directed above, within the time O.P.(C) No. 849 of 2016 6 limit specified hereinbefore, the execution court shall proceed with the sale of the attached property in terms of the order dated 02.02.2016 in E.P.No.445/2014 in O.S.No.833/2012. Both parties shall appear before the Execution Court on ## **20.11.2017** . sd/- **ANIL K. NARENDRAN** **JUDGE** AMV/