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2022 Supreme(Online)(KER) 29681
HIGH COURT OF KERALA
C.S. DIAS, J
DEVASSYKUTTY
– Appellant
Versus
DAISY JOSE – Respondent
OP(C) 2433 2022
DEEPAK JOY, K.AJAI JOHN, SANDHYA RAMAN, AJITH VISWANATHAN, SHIBU JOSEPH
The court established that a failure to fix an upset price and consider objections renders the sale order illegal under the Code of Civil Procedure.
Headnote:
Execution - Attachment - Code of Civil Procedure 21-64 - The court ruled that failure to address objections regarding the sale of only a portion of property and to fix an upset price rendered the sale order illegal, requiring upset price fixation before proceeding.
Fact of the Case:
The petitioner challenged an order proclaiming the sale of an entire property for debt recovery, claiming it was illegal due to the court's failure to fix an upset price and consider objections for selling only a portion of the property.
Finding of the Court:
The court found that the lower court did not address the petitioner's objections or fix an upset price, constituting a violation of procedural mandates and necessitating judicial intervention.
Issues: The main issues were the legality of the sale order for the entire property without fixing an upset price and failing to address the objections raised by the petitioner.
Ratio Decidendi: The court emphasized that under Order 21 Rule 64, only a portion of property should be sold if sufficient to satisfy the debt, and the upset price must be fixed to protect the judgment debtor's interests.
Final Decision: The court set aside the sale order and mandated proper consideration of objections and fixation of an upset price before proceeding.
JUDGMENT
Aggrieved and displeased with Ext.P7 order passed in E.P No.132/2017 in O.S No.350/2013 by the Court of the Principal Subordinate Judge, North Paravur, the judgment debtor has filed the original petition. The respondent is the decree holder.
2. The concise case of the petitioner leading to Ext.P7 order, is: the respondent had filed O.S. No.350/2013 before the court below for a decree for recovery of money. The dispute between the parties was settled as per the award passed by the Lok Adalath on 12.11.2015. The petitioner failed to comply with the conditions of the award. The respondent laid the award to execution by filing E.P. No.132/2017, by proceeding against the property of the petitioner having an extent of 15.50 cents in Chowara Village. The petitioner has filed Ext.P3 objection to the attachment petition, inter alia, contending that the property has a market value of Rs.5,00,000/- per cent and the building situated therein is worth more than Rs.60,00,000/-. The petitioner also filed Ext.P4 objection to the valuation made by the Village Officer. An Advocate Commissioner also valued the property, with the help of an approved valuer, and Ext.P5 report has been placed on record. The petitioner has filed Ext.P6 objection to the draft sale proclamation, inter alia, contending that only a portion of the property need to be sold to realise the award debt. The valuation report unambiguously substantiates that the property is surrounded by roads on three sides and is situated in a commercially important locality. Nonetheless, the court below has proclaimed the whole property for sale as per Ext.P7 order, without fixing the upset price. Ext.P7 is ex- facie illegal and manifestly wrong. Hence, the original petition.
3. Heard; Sri. Deepak Joy K, the learned counsel appearing for the petitioner and Sri. Shibu Joseph, the learned counsel appearing for the respondent.
4. The question is whether there is any illegality in Ext.P7 order.
5. The bone of contention of the petitioner is two fold (i) the court below had failed to fix the upset price and (ii) the court below has not rendered any finding/reasons for putting the whole property for sale, despite the objection of the petitioner.
6. It is the specific case of the petitioner in Exts.P3 and P6 objections that, the property has an extent of 15.50 cents and has market value of Rs.5,00,000/- per cent with a building worth Rs.60,00,000/-. Therefore, only a portion of the property need be sold to realise the award debt.
7. The court below, without adverting to Exts.P3 and P6 objections, by a laconic order has directed the property to be sold after fixing the market value at Rs.1/-
Crore.
8. The obligation of the courts to consider whether only a portion of the property need be sold as per the mandate under Order 21 Rule 64 of the Code of Civil Procedure (in short, ‘Code’) is no longer res integra, in view of the exposition of law by a Division Bench of this Court inFathima Beevi v. Joly John [ 2022 (2) KHC 479 ]. It is emphatically declared that, no sale shall be allowed beyond the decretal amount mentioned in the sale proclamation and the courts have to consider whether only a portion of the property need be sold to satisfy the decree, if not it will vitiate the process and the sale would become illegal.
9. In the case at hand, although the petitioner has specifically averred the valuation of the property and that only a portion of the property needs to be sold, the court below has not adverted to the objections but has passed Ext.P7 order in cryptic manner. Therefore, I hold there is clear infraction of the mandate of Order 21 Rule 64 of the Code, which warrants to be interfered by this Court.
10. Now, coming to the question whether there is any requirement to fix the upset price of the property before proceeding with the sale.
11. This Court in Nedungadi Bank Ltd. V.
Ezhimala Agrl. Products [ 2003 KHC 1229 ] has succinctly held as follows:-
11. The expression upset price is more one of lan
