UNNIKRISHNAN NAIR v. MANICKANAMPARAMBIL CITTY FUND, SIVAN NAIR, N.SARIJINIAMMA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 26TH DAY OF MAY 2014/5TH JYAISHTA, 1936** **FAO.No. 186 of 2008 ( ) ------------------------** **AGAINST THE ORDER IN E.A.NO.622/2006 IN E.P.NO.281/2001 IN OS 165/1997 of PRL.SUB COURT,KOTTAYAM** **APPELLANT/IST PETITIONER/IST JUDGEMENT DEBTOR:** **---------------------------------------------------** **UNNIKRISHNAN NAIR, S/O.KESAVAN NAIR, THEKKEDATH HOUSE, KIZHAKKUMCHERIMEL, THEKKEMURI NADUVILA VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT.** **BY ADV. SRI.C.S.MANILAL** **RESPONDENTS/RESPONDENTS/DECREE HOLDER AND JUDGEMENT DEBTOR 2 AND 3:** **-------------------------------------------------------** **1. MANICKANAMPARAMBIL CITTY FUND, REP. BY MANAGING PARTNER, THANKAMMA MATHEW W/O.MANICHANAMPARAMBIL MATHEW, NADUVILE HOUSE UDAYAMPEROOR MURI, MANNAKUNNAM VILLAGE, ERNAKULAM.** **2. SIVAN NAIR, S/O.KRISHNAN NAIR, SAROJINI BHAVAN, ULLALA KARA, THALAYAZHAM VILLAGE VAIKOM TALUK, KOTTAYAM DISTRICT.** **3. N.SARIJINIAMMA, W/O.SIVAN NAIR, SAROJINI BHAVAN, ULLALA KARA, THALAYAZHAM VILLAGE VAIKOM TALUK, KOTTAYAM DISTRICT.** **BY ADV. SRI.PHILIP T.VARGHESE ADV. SRI.THOMAS T.VARGHESE** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 26-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **F.A.O.No.186 OF 2008** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of May, 2014 ## **JUDGMENT** ## Ramachandran Nair, J. The order under challenge is one passed in E.A.No.622/2006 in E.P.No.281/2001 in O.S.No. 165/1997 of Principal Sub Court, Kottayam and the appellant is the first judgment debtor. 2. We heard the learned counsel for the appellant Sri.C.S.Manilal and the learned counsel for the respondents Sri.Philip T.Varghese. 3. The order under challenge is one passed by the Execution Court rejecting the prayer of the appellant to set aside the sale of 3 items of properties. Going by the facts of the case, he was the first defendant in the suit and the suit was filed based on a chitty transaction which was decreed allowing the plaintiff to realise a sum of ` 2,09,535/- with interest @ 12% p.a. from the date of the suit till the date of decree and 6% p.a. from the date of decree till realisation. F.A.O.No.186/2008 2 Three items of properties were brought to sale in execution. Going by the averments in paragraph 2 of the memorandum of appeal, item 1 is the property belonging to the appellant having an extent of 84 cents in Vaikkom Municipality. Item 2 consists of 45 cents belonging to the second judgment debtor and Item 3 is the property having an extent of 3.5 cents belonging to the third judgment debtor. It is contended by the learned counsel for the appellant that in spite of the order passed by this court in C.R.P.No.72/2006, a copy of which has been produced as Annexure A, all the three items of properties were sold in one lot. It is submitted that in the said order this court had clearly observed that execution court must ensure that subsequent items are sold only if the former item does not fetch sufficient amount to satisfy the decree debt. It is stated that no attempt was made by the court in that regard. Even though these aspects were brought to the notice of the execution court, the prayer was rejected. 4. The learned counsel for the decree holder Sri.Philip T.Varghese submitted that the appellant remained ex parte in the execution proceedings and the earlier C.R.P. was not filed by the F.A.O.No.186/2008 3 appellant, but by the judgment debtors 2 and 3. It is submitted that with regard to the upset price fixed in respect of item No.1, there was no objection from the part of the appellant which is clear from paragraph 4 of Annexure A. It is also submitted that the judgment of this court namely Annexure A was never brought to the notice of the execution court before the confirmation of sale. It is also submitted that the application filed as E.A. No.622/2006 is out of time. 5. The learned counsel for the appellant relied upon the following decisions : ## **Ambati Narasayya v. M.Subba Rao and another ( AIR** **1990 SC 119)** ## **Balakrishnan v. Malaiyandi Konar ( 2006(1) KLT 926 (SC)** ## **Kuruvilla v. Corporation Bank ( 2008(1) KLT 604)** In all these cases the principles discussed are with regard to the governing factors which will have to be gone into by the court under Rule 64 Order 21. We need only refer to paragraph 7 of the judgment of the Supreme Court in **Ambati Narasayya v. M.Subba Rao and another** ( AIR 1990 SC 119), which we extract below : F.A.O.No.186/2008 4 _“7. It is of importance to note from this provision that in all execution proceedings, the Court has to first decide whether it is necessary bring the entire attached 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 only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree-holder. 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, in our opinion, is not just a discretion, but an obligation, imposed on the Court. Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without jurisdiction.”_ 6. Going by the same, the court will have to first decide whether it is necessary to bring the entire property for sale or such portion thereof to satisfy the decree. It will depend upon the decree amount as well as the extent of property involved. Finally it was held F.A.O.No.186/2008 5 that sale without examining this aspect and not in conformity with this requirement is illegal and without jurisdiction. 7. The learned counsel for the respondents submitted that if at all there was any case for the appellant, it should have been brought to the notice of the court at appropriate time and as he has not done so, no indulgence is required to be shown to him. Support is sought from the dictum laid down in Commissioner of **Income-tax, Bombay v. M/s. Alcock Ashdown and Co.Ltd.etc. (AIR 1997 SC 1997)** . We find much force in the said submission. 8. It is true that the appellant did not raise any objection at the appropriate time. The only thing that persuades this court now, is the observation made in Annexure A judgment wherein the matter was considered at the instance of the judgment debtors 2 and 3. The governing principles were restated therein. It is seen that the judgment is dated 2.2.2006 and the court below on the same day directed that the sale will be held in public auction on 25.03.2006 at 2.30 p.m. In the order now passed by the court, the court was of the view that the first item being a reclaimed wet land it is not sufficient to satisfy the decree. F.A.O.No.186/2008 6 But we find that the basic materials for the court to arrive at such a finding were not before the court by way of evidence regarding proper valuation of the property concerned, by resort to any known methods. Of course the appellant was in default in not attempting the same at the appropriate time. But in the light of the principles laid down in **Ambati Narasayya v. M.Subba Rao and another ( AIR 1990 SC 119)** that the sale held will be illegal and without jurisdiction, if the relevant parameters are not followed by the court and in the light of Annexure A judgment, we are of the view that the impugned order cannot survive. Accordingly, we allow the appeal and set aside the impugned order. 9. The learned counsel for the appellant Sri.C.S.Manilal prays for an opportunity to clear the decree debt by sale of a portion of 84 cents namely item 1 by private sale. It is submitted by the learned counsel for the decree holder Sri.Philip T.Varghese that the attempt is only to delay the execution steps and there are no bonafides in the said submission as he has not made any payment at the appropriate time. Of course the decree holder will be interested in getting back the entire F.A.O.No.186/2008 7 money with upto date interest and it also to be noted that the extent of the property to be sold should be commensurate with the total decree amount and costs and interest which has accrued in the meanwhile. Therefore appropriate steps in that regard can be permitted, but the appellant should show his bonafides in the matter. One of the factors pointed out by Sri.Philip T.Varghese is that the same property is being proceeded with in other execution matters. We are not pronouncing anything on the said aspect for lack of materials. We pass the following orders :- The sale will stand set aside and the court will pass a fresh order after allowing all opportunities to both sides. Appropriate steps will be taken in tune with Annexure A judgment. If proper application is filed by the appellant herein to have private sale of any portion of item 1 property, that will be considered by the court. We direct the appellant to deposit an amount of ` 2 lakhs ( Rupees two lakhs only). The said amount will be deposited before the execution court within three months from today. If the amount is not deposited, it will be upto the court to pass appropriate orders on the application for 8 F.A.O.No.186/2008 permission for private sale to be filed by the appellant. Since the sale is set aside, the stamp duty paid by the decree holder to get the sale certificate will be refunded on proper application. No costs. ## **T.R.RAMACHANDRAN NAIR, JUDGE** **P.V.ASHA, JUDGE** sv.