Vanaja v. O.R. Mani and Kasu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931** ## **WP(C).No. 30502 of 2009(O)** **--------------------------------------** ## **EP. NO.19/2000 IN OS.317/1997 of PRINCIPAL SUB COURT, PALAKKAD** **....................** ## **PETITIONER(S):** **------------------------** **VANAJA, W/O. LATE RAJENDRAN, CHOZHYAKATTIL, PATTANCHERRY, CHITTUR TALUK, PALAKKAD DISTRICT.** **BY ADVS.MR.O.RAMACHANDRAN NAMBIAR MR.GEEN T.MATHEW** ## **RESPONDENT(S):** **-------------------------** **1. O.R. MANI, S/O. RAMAN, ALLINGAL VEEDU, ODAVAGODU, MUNDUR DESOM, PALAKKAD TALUK.** **2. KASU, W/O. PAZHANANKUTTY, CHOZHYAKATTIL, PATTANCHERRY, CHITTUR TALUK, PALAKKAD DISTRICT.** ## **ADV. SRI.T.K.CHINNAN FOR R1** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/01/2010, THE COURT ON 09/02/2010 DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.30502/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE JUDGMENT DTD. 24.7.2008 IN WPC. 22376/2008.** **P2:- COPY OF THE DRAFT SALE PROCLAMATION.** **P3:- COPY OF THE ORDER DTD. 30.9.2009 IN EP. 19/2000 IN OS. NO.317/1997.** **TRUE COPY** **P.A. TO JUDGE** **tss** ## S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.30502 OF 2009 -------------------------------- ## Dated this the 12[th] day of January 2010 ---------------------------------------------------------- ## JUDGMENT The writ petition is filed seeking the following reliefs. _i) Issue a writ, direction or order to quash Ext.P3._ - _ii) Call for the records relating to Ext.P3._ - _Iii) Direct the Executing Court (Sub Court, Palakkad) to pass fresh orders after considering the objections_ - _of the petitioner to Ext.P2._ - _iv) Award costs of this writ petition._ - _v) Grant such and other reliefs as this Hon'ble Court may be pleased to grant on the facts and_ - _circumstances of this case._ 2. Petitioner is the 1[st] judgment debtor in E.P No. 19 of 2000 in O.S No.317 of 1997 on the file of Principal Sub Court, Palakkad. Decree being executed in the above execution petition is one passed in a suit for money, Ext.P3 order passed by the execution court settling the proclamation for sale of 2/3 share of the judgment debtors in two items of properties and its publication for sale is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. W.P.(C).No.30502 OF 2009 Page numbers 3. Notice was ordered only to the 1[st] respondent, the decree holder. Petitioner was also directed to serve copy on the counsel appearing for the respondents in the court below and file memo. Service by notice through court could not be effected, but, a memo has been filed by the petitioner evidencing service of notice on the counsel for the 1[st] respondent/decree holder. Service of notice on decree holder is found sufficient and declared as such. 4. At the time of admitting the writ petition, a challenge was raised that the executing court has passed Ext.P3 order overlooking the directions given in Ext.P1 judgment by this court. A report was called for from the learned Sub Judge whether the directions in Ext.P1 judgment have been complied while passing Ext.P3 order. The learned Sub Judge in compliance thereof has filed a report narrating in detail the steps leading to the passing of Ext.P3 order. 5. I heard the learned counsel for the petitioner. Ext.P3 order is assailed by the learned counsel for the petitioner/1[st] judgment debtor contending that the learned W.P.(C).No.30502 OF 2009 Page numbers Sub Judge flouted the directions issued in Ext.P1 judgment in settling the proclamation. This court in Ext.P1 judgment had directed the executing court to consider whether a portion of the decree schedule properties is sufficient to satisfy the decree debt, but, no enquiry thereof was conducted and fixing mechanically upset price over item No.1 and 2 properties covered by the decree schedule, the court has ordered for 2/3 shares over such property for sale by Ext.P3 order, is the submission of the learned counsel. Reliance is placed on “S.Mariyappa v Siddappa and others” ( (2005) 10 SCC 235), “Desh Bandhu Gupta v N.L. Anand & Rajinder Singh” ((1994) 1 SCC 131), “Mahakal Automobiles and another v Kishan Swaroop Sharma” ((2008) 13 SCC 113), “Sai Enterprises v Bhimreddy Laxmaiah and Another” ((2007) 13 SCC 576), “Kuruvila v Corporation Bank” (2008(1) KLT 604) and “M/s. Shalimar Cinema v Bhasin Film Corporation and Another” (AIR 1987 SCC 2081) that a mandatory duty is cast upon the court to examine whether the whole or portion of the property is to be proceeded for sale, and if a portion alone is found sufficient to satisfy the W.P.(C).No.30502 OF 2009 Page numbers decree, then, sale should proceed only in respect of that portion of the property of the judgment debtor though an order of attachment had been passed in respect of the whole property. Similarly, in fixing the value of the property for sale, compliance of the mandate under Order 21 Rule 66(2) of the Code of Civil Procedure for showing the proper market value of the property, after the court applying its mind, has to be followed, which, if not done would amount to flouting of the mandate under the above rule, is the submission of the counsel relying on the decisions referred to above. 6. After perusing the report of the learned Sub Judge and noticing what had transpired in the execution proceedings till passing of Ext.P3 order, I find no merit in any of the challenges canvassed by the learned counsel for the judgment debtor placing reliance on the decisions referred to above. The decree executed in the execution proceedings provides for realisation of Rs.3,11,250/- with 12% interest per annum on the principal sum of Rs.2,50,000/- from the date of suit till realisation charging the entire decree amount on four items of immovable properties. In W.P.(C).No.30502 OF 2009 ## Page numbers addition, the decree also provided for realisation of cost of Rs.25,243/- to the plaintiff from the defendants. The two judgment debtors, both of them together, had resisted the execution contending that they have only 2/3 share in the decree schedule properties, that the decree schedule properties include a house worth Rs.15,00,000/- and a portion alone of the properties need be sold to satisfy the decree. The report of the learned Sub Judge would show that when steps for sale proceeded, they sought for two months time by filing E.A No. 2531 of 2001 and E.A No.485 of 2001 to discharge the decree debt. Though time was granted, the decree debt was not discharged. The executing court thereupon proceeded with sale of item No. 1 and 2 of the decree schedule properties. Since there were no bidders on the date fixed for sale of such properties, the decree holder filed an application, E.A No.485 of 2001 on 12/07/2001 to include item No. 3 and 4 in the decree schedule as well for sale. Then the execution court proceeded for sale of all the four items. The present petitioner challenged that order by filing C.R.P No.626 of W.P.(C).No.30502 OF 2009 Page numbers 2002 before this court. This court disposed of that revision by the order dated 07/11/2002 with some direction which included a direction to show the value of the items as suggested by the judgment debtors also in the proclamation to be settled and in the publication of sale. After such remission, the judgment debtors together filed objections contending that they have 2/3 share in the schedule properties and it is worth Rs.25,00,000/-. The judgment debtors did not suggest any valuation for the items of properties. When steps proceeded for sale of the properties fixing upset price of Rs.6,00,000/- and directing proclamation of sale on 30/07/2008, the present judgment debtor filed a writ petition before this court impeaching the order passed by the execution court for proclamation of sale. That writ petition was disposed vide Ext.P1 judgment dispensing notice to the decree holder with the following directions. “As provided under second proviso to subrule(2) of Rule 66 of Order XXI of the Code of Civil Procedure, though executing court need not enter its own estimate of the value of the property in the proclamation, the W.P.(C).No.30502 OF 2009 ## Page numbers proclamation shall include the estimate, if any, given by the judgment debtor. In spite of Ext.P1 order passed by this court directing the executing court to show the value of the property claimed by the judgment debtor, Ext.P2 does not show same. Moreover, under subrule(2) of Rule 66 of Order XXI of Code of Civil Procedure, it is not the duty of the executing court to fix the upset price as has been done under Ext.P4. Ext.P4 order is quashed. Executing court shall also consider whether by selling a portion of the decree schedule properties, decree holders can realise the entire decree debt, and if so, executing court shall restrict the sale of only that portion of the property. The learned Sub Judge is directed to issue fresh proclamation and direct sale of the property, after directing the decree holder to show the value of the property, as claimed by the petitioner/judgment debtor in Ext.P3 objection.” 7. The report of the learned Sub Judge would disclose that even before filing of the writ petition which lead to passing of Ext.P1 judgment, the judgment debtor had not furnished the value of the properties other than W.P.(C).No.30502 OF 2009 Page numbers contending that the house situate in one of the items has a value of Rs.15,00,000/-. After Ext.P1judgment was passed also other than contending that the properties are worth Rs.25,00,000/-, according to the report of the learned Sub Judge, no statement was filed by the judgment debtor showing the value of each item of property nor even specifying in which item the house is situate. In view of the report as indicated, counsel for the petitioner was requested to hand over copy of the objections filed to the draft proclamation. The learned counsel handed over to me copy of the objections filed by the judgment debtors dated 05/04/2008 before the execution court. Perusing copy of the objections, I find that the statements made in the report by the learned Sub Judge that the judgment debtors have not shown the value of each item separately other than contending that they have 2/3 shares in the properties and the house situate is having a value of Rs.25,00,000/- is correct. While taking exception to the nonfurnishing of value of each item by the decree holder in proceeding for sale of the properties, after filing such an objection, it is W.P.(C).No.30502 OF 2009 Page numbers seen the judgment debtors have impeached the proclamation settled for sale of the properties by filing the writ petition which lead to passing of Ext.P1 judgment. Whatever that be, it is seen from the report of the learned Sub Judge thateven after passing of Ext.P1 judgment with direction as indicated above calling upon the execution court “to show the value of the property claimed by the judgment debtor” and also to consider “whether by selling a portion of the decree schedule properties, decree holder can realise the entire decree debt”. the judgment debtors have not furnished any statement showing the value of the four items of properties separately nor in which item the house which is claimed by them as having Rs.15,00,000/- is situate. The report of the learned Sub Judge would show that pursuant to Ext.P1 judgment, fresh draft sale proclamation was directed to be filed by the decree holder. 8. The decree holder submitted such fresh schedule on 27/09/2008 stating that the judgment debtors have not furnished any separate valuation statement in respect of the items. The judgment debtors filed objection W.P.(C).No.30502 OF 2009 Page numbers to that schedule with a copy of the land value certificate dated 13/06/2008 issued by the Tahsildar, Chittur. Pursuant to such objections, the decree holder filed fresh schedule seeking for sale of 2/3 share of the judgment debtors in item No.1 alone. The execution court noticing that item No.1 is a paddy land and evaluating its value with reference to the land valuation certificate given by the Tahsildar found that, the 2/3 share of the judgment debtors in that item was insufficient to satisfy the decree as at that time it had mounted above Rs.7,00,000/-. The execution court thereupon passed an order on 17/06/2009 specifically pointing out that the judgment debtors have not produced the valuation statement of the items of properties, but, only a valuation certificate of the Tahsildar. The report of the learned Sub Judge disclose that the value of the items covered by decree schedule was considered with reference to the valuation certificate of the Tahsildar produced by the judgment debtors to ascertain whether whole or any portion of such property has to be proceeded with to satisfy the decree debt of Rs.7,00,000/-, and after applying its mind, it W.P.(C).No.30502 OF 2009 Page numbers was ordered to proceed with the sale of item No.1 and 2 of the decree schedule properties. In the report, it is stated that “it was ordered that valuation computed on the basis of the land valuation certificate shall be incorporated. Share of the judgment debtors in item No.1 and 2 shall be put in auction initially and if it does not satisfy the decree debt, other items can be put in auction as to realise the debt.” Decree holder was directed to furnish fresh draft sale proclamation as indicated by the order dated 17/06/2009. That order has not been challenged by the judgment debtors, but, only the fresh draft sale proclamation ie, Ext.P2 produced by the decree holder in compliance of the direction by the execution court. The report would further disclose that the decree holder had shown a value of Rs.1,70,000/for item No.1 and 2 with reference to the land valuation certificate given by the Tahsilder produced by the judgment debtors. The estimated value of the 2/3 share of the judgment debtors in the properties, item No.1 and 2, was assessed by the execution court with reference to the land valuation certificate of Tahsildar produced by the judgmetn W.P.(C).No.30502 OF 2009 Page numbers debtors and fixed at Rs.4,20,200/- and Rs.2,43,000/respectively. It is also pointed out by the learned Sub Judge in his report that item No.1 and 2 properties are paddy lands and it does not comprise any house at all. Description of the items of properties, according to the learned Sub Judge, indicate the house is in item No.3 and 4, which are not proceeded for sale in auction. To the draft sale proclamation produced by the decree holders, no objection was filed by the judgment debtors. The court thereupon on 30/09/2009 settled the proclamation and ordered for publication of sale fixing the date thereof. The learned Sub Judge has reported that the court has not fixed any upset price but had only shown the estimated value of item No. 1 and 2 with reference to the valuation certificate of the Tahsildar produced by the judgment debtors with that of the value shown by the decree holder in the proclamation settled for sale. 9. The report of the learned Sub Judge clearly indicate that the petitioner/judgment debtor suppressing material facts as to what transpired in the execution W.P.(C).No.30502 OF 2009 Page numbers proceedings has filed this writ petition as an experimental venture to stall the execution of the decree. Challenges raised against the proclamation settled for sale of the properties in the given facts of the case are unworthy of any merit. The decisions relied by the learned counsel for the petitioner have no application to the facts of the present case where it is seen that the execution court is proceeding strictly in accordance with the directions given by this court. There is no merit in the writ petition, and it is dismissed directing the execution court to complete the execution proceedings as expeditiously as possible. Send a copy of the judgment to the court concerned forthwith. Sd/- ## S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// ## P.A TO JUDGE vdv