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IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.R. ANITHA, J.
Silvi W/o Shaji V.D. – Petitioner
Versus
Iritty Chits Finance and Investments (Private) Limited – Respondent
O.P. (C) No. 586 of 2020
Decided On : 07-07-2021
Code of Civil Procedure, 1908 – Order XXI Rule 66, Rule 64 – Realization of amount – Sale Proceeds – Petitioner is respondent/judgment-debtor in E.P. in O.S. of Sub Court, Payyannur – Original Petition has been filed against impugned order fixing upset price by execution Court – Main argument of petitioner is that, though detailed counter was filed by petitioner to sale proclamation, without considering any of contentions in objection, upset price of property has been fixed as Rs. 25 lakhs by execution court
Finding of the court:
, It is not necessary for Court to make valuation and enters it in sale proclamation in every case, it is desirable in cases of sale of valuable property that Court shall makes it valuation and enter it in proclamation – In view of vast difference in valuation of property made by respondent/decree holder and petitioner/ judgment-debtor, learned Sub Judge was on his right side in opting to fix upset price – But same does not appear to have been done fairly and reasonably – Though law does not insist court to pass a long and reasoned order as has been held in Unni Madhavan Nair's case, order should have reflected application of mind with respect to material question of value of property – Execution Court also seems to have failed in its duty in considering objection of petitioner that a portion of property excluding building would have been sufficient for satisfaction of decree – If a part of property is sufficient to meet decree debt, there is a duty cast upon Court to fix extent of property to be sold with specifications like boundaries, survey number etc. for identification of property to auction purchasers – That aspect has not been considered at all by execution court – Impugned order passed by Execution Court is illegal and irrational in fixing upset price of Rs. 25 lakhs in absolute disregard of settled principles of law and caused miscarriage of justice and hence is not sustainable either in law or on facts –
Result : Original Petition Allowed
JUDGMENT :
M.R. ANITHA, J.
1. Petitioner is the respondent/judgment-debtor in E.P. No. 24/2017 in O.S. No. 100/2014 of Sub Court, Payyannur. The Original Petition has been filed against the impugned order fixing upset price by the execution Court.
2. The Suit was one for realization of amount and it was decreed against the petitioner/Judgment-debtor (hereinafter referred as ‘petitioner’). Since the payment was not made, E.P. No. 24/2017 was filed by the respondent/decree holder (here in after be referred as respondent) for executing the decree by attachment and sale of 34.5 cents of land owned by the petitioner. According to the petitioner, the value of the property shown as 22 lakhs in the sale proclamation is far below the actual value of the property prevailing in the area. Petitioner filed detailed counter to the valuations shown in the sale proclamation and copy of which is produced as Ext.P1. Petitioner claims that the property would fetch a value of Rs. 1,03,50,000/- (1 Crore 3 lakhs 50 thousand). The building in the property is having a plinth area of 2900 sq. feet. It would worth more than Rs. 50 Lakhs. The market value of the property in the locality is Rs. 25 lakhs per cent. An Advocate commissioner was appointed in E.P. No. 171/2016 pending before the Munsiff Court, Thaliparamba for valuation of the very same property and the Commissioner valued the property at Rs. 1,35,50,000/-. The copy of the report of the Advocate Commissioner is produced as Ext.P2. The decree amount can be realized by selling a portion of the property. The property is situated on the side of the public road at Perikulam which is a fast developing area. But without considering any of those factors the learned Sub Judge fixed the upset price as Rs. 25 Lakhs by the impugned order.
3. Notice was issued to the respondent and respondent appeared through Counsel. Both sides were heard. Though it was submitted that the objection has been filed with bench mark and it was directed to be incorporated with the file, it is reported from the office that objection is not received.
4. The main argument of the petitioner is that, though detailed counter was filed by the petitioner to the sale proclamation, without considering any of the contentions in the objection, upset price of the property has been fixed as Rs. 25 lakhs by the execution court.
5. Order XXI Rule 66 of the Code of Civil Procedure, 1908, (hereinafter referred as ‘the Code’) deals with proclamation of sale by public auction. It declares the procedure to be followed by the Court when a property is ordered to be sold in execution of decree by public auction. Sub-Rule (2) of Rule 66 provides how the proclamation to be drawn up, what are the matters to be specified etc. of course after due notice to the judgment debtor. Clause (e) of Sub-Rule (2), which is relevant for the disposal of this matter, reads thus:
6. It is a settled position that the value of the property to be put up for sale is a material fact within the meaning of clause (e). Commentaries on the Code of Civil Procedure by Dinshah Fardunji Mulla, 18th Edition, page 2605, relevant portion is extracted thus, as observed by the Privy Council [Saadatmand Khan vs. Phul Khan, (1898) 20 All. 412]:
7. With regard to the duty of the Court in fixing the fair value there had been divergent views of different High Courts that the Court should not make a valuation and also that Court has a duty to make a valuation and enter in the sale proclamation. In
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