Santamma Abraham v. Mylapra Service Co-operative Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941** ## **OP(C).No.366 OF 2020** **AGAINST THE ORDER/JUDGMENT IN ARC 42/2015 OF SUB COURT, PATHANAMTHITTA** ## **PETITIONER/S:** **SANTHAMMA ABRAHAM AGED 66 YEARS** **W/O ABRAHAM P.V.PULLAMPALLIL HOUSE, ANAPPARA, PATHANAMTHITTA VILLEGE, KOZHENCHERRY TALUK, PIN-689 653.** **BY ADVS. SRI.JAMES ABRAHAM (VILAYAKATTU) SRI.P.BALAN (VYTTILA)** ## **RESPONDENT/S:** **MYLAPRA SERVICE CO-OPERATIVE BANK LTD.NO.639 REPRESENTED BY THE SECRETARY, JOSHUA MATHEW, CHOLLAMANKAL HOUSE, KUMBAZHA MURI, MYLAPRA, PATHANAMTHITTA-689 671.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No.366 OF 2020** -: 2 :- ## **JUDGMENT** Ext. P5 notice issued by the court under Order 21 Rule 66 CPC, is under challenge in this Original Petition. 2. When the petitioner received Ext. P5 notice, she approached this Court with the above Original Petition. ## 3. Heard. 4. The learned counsel for the petitioner has argued that the court below proposed to sell 11.53 ares of property, having a market value of more than Rs. 2 cores, in execution of a decree for an amount of Rs. 26,79,278/- without even ascertaining the market value of the property and in the said circumstances, Ext. -: 3 :- **OP(C).No.366 OF 2020** P5 cannot be sustained. 5. Before proceeding further, it will be profitable to understand Order 21 Rule 64 CPC, which reads thus:- “64. Power to order property attached to be sold and proceeds to be paid to person entitled: - 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”. 6. It is clear from Order 21 Rule 64 CPC that before issuing proclamation, it is obligatory on the part of the court to satisfy that only such portion of the property as would satisfy the decree is sold and not the -: 4 :- **OP(C).No.366 OF 2020** entire property. 7. The Apex court in S.S. Dayananda v. K.S. Nagesh Rao and Others [(1997) 4 SCC 451] relied on the decision of the Apex Court in Desh Bandhu Gupta v. N.L. Anand and Rajinder Singh [(1994) 1 SCC 131] and held that the procedural compliance of Order 21, Rule 64 CPC is a mandatory requirement. 8. The Apex Court in Balakrishnan v. Malaiyandi Konar [2006 (1) KLT 926 (SC)] relied on the decisions of the Apex Court in S.S. Dayananda (supra) and Desh Bandhu Gupta (supra) and held that use of the expression “necessary to satisfy the decree” in Order 21 Rule 64 of CPC indicates the legislative intent that no sale can be allowed beyond the decreetal amount mentioned -: 5 :- **OP(C).No.366 OF 2020** in the sale proclamation. 9. The Apex Court in Balakrishnan (Supra) further held that the procedural compliance of Order 21 Rule 64 CPC is not just a discretion but an obligation imposed on the Court and the sale held without examining this aspect and not in conformity with this mandatory requirement would be illegal and without jurisdiction. 10. In all execution proceedings, the Court has to first decide whether it is necessary to bring the entire property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree to be satisfied is small, the Court must bring for sale only such portion of the property the proceeds of which would be sufficient to satisfy the claim of the -: 6 :- **OP(C).No.366 OF 2020** decree holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion can be sold without violating any provision of law, only such portion of the property should be sold. 11. The above discussion would make it clear that the procedural compliance of Order 21 Rule 64 CPC is not just a discretion but an obligation imposed on the Court and the sale held without examining this aspect and not in conformity with this mandatory requirement would be illegal and without jurisdiction. This being the position, the court below is directed to draw up the proclamation only after complying with the provisions of Order 21 Rule 64 CPC. Ext. P5 is only a notice issued under sub-Rule (2) of Rule 66 of Order 21 CPC. -: 7 :- **OP(C).No.366 OF 2020** Therefore, the petitioner shall be at liberty to file objection. After considering the contentions on both sides, the proclamation for sale will be drawn up by the court below after deciding the question as to whether the above extent of property is necessary to satisfy the decree or not. This being the situation, no interference by this Court at this stage will be justified. This Original Petition (Civil) stands disposed of as above. Sd/-B.Sudheendra Kumar, Judge. Ani/ /true copy/ -: 8 :- ## **OP(C).No.366 OF 2020** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE AWARD DATED 26.2.2015 IN ARC NO 42/2015** **EXHIBIT P2** **A TRUE COPY OF THE CERTIFICATE DATED 27.1.2016 IN FORM NO 12 UNDER SUB RULE (1) OF RULE 72 OF KERALA CO-OPERATIVE SOCIETIES RULES** **EXHIBIT P3** **A TRUE COPY OF THE E.P NO 87/2016 IN ARC NO 42/2015** **EXHIBIT P4** **A TRUE COPY OF THE SCHEDULE OF PROPERTY SUBMITTED BY THE RESPONDENT IN E. P NO 87/2016 ON THE FILE OF SUB COURT, PATHANAMTHITTA** **EXHIBIT P5** **A TRUE COPY OF THE NOTICE UNDER ORDER 21 RULE 66 OF CIVIL PROCEDURE CODE IN EP NO 87/2016 IN ARC NO 42/2015 ISSUED BY THE SUB COURT, PATHANAMTHITTA**