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2021 Supreme(Online)(KER) 41530
HIGH COURT OF KERALA
V. G. Arun, J
NOUSHAD.K,S/O. MAMMIKUTTY, – Appellant
Versus
SUSEELA, – Respondent
OP(C)/872/2019
VISHNU BHUVANENDRAN, SMT.B.ANUSREE
In execution proceedings, the court must ensure that valuations reflect the true worth of property, especially when faced with challenges regarding upset prices in auctions.
Headnote:
Execution - Original Petition - CPC Order XXI Rule 90 - The court analyzed the execution processes under the Code of Civil Procedure, particularly focusing on the principles governing upset price fixation and the importance of property valuation in auctions.
Fact of the Case:
The petitioner sought execution for specific performance after a settlement was breached by the respondents. They challenged the upset price set for a property auction, arguing the value did not reflect the true worth after inadequate bidder participation.
Finding of the Court:
The court found that while the earlier dismissal of applications was valid, it was essential to ensure the execution of the decree effectively. The absence of bidders supported the need to re-evaluate the upset price considering all factors.
Issues: Whether the court's fixation of the upset price at Rs.28,00,000/- was appropriate given the evidence presented about the property's condition and market factors.
Ratio Decidendi: The court emphasized that in execution matters, the goal must be to effectuate the decree, and factors such as property condition must be examined to ensure fair proceedings.
Final Decision: The original petition was allowed, setting aside the lower court's order and mandating a new evaluation of the property's building value.
JUDGMENT
Dated this the 25th day of November, 2021 The petitioner is the plaintiff/decree holder in E.P.No.141 of 2014 in O.S.No.324 of 2011 of the Subordinate Judge's Court, Ottapalam. The suit was filed seeking specific performance of an agreement. Pending the suit, parties came to a settlement by the defendants/respondents agreeing to pay an amount of Rs.3,00,000/-. The respondents failed to abide by the agreement and the petitioner sought execution of the decree by sale of the immovable properties belonging to the respondents. The execution court fixed the upset price of the property at Rs.3,68,000/- and in the absence of other bidders, petitioner was permitted to participate in the auction and he purchased the property for Rs.4,03,100/-. After the sale was confirmed and sale certificate issued to the petitioner, respondents moved an application for setting aside the sale under Order XXI Rule 90 CPC. The irregularity alleged was the court had failed to reckon the value of the building in the property while fixing the upset price. The application was dismissed and the respondents challenged the order in appeal. The appellate court set aside the sale and directed to refix the upset price. Thereupon, the court below got the property valued with the aid of a Civil Engineer and fixed the upset price at Rs.28,00,000/-. After re-fixing the upset price, the property was brought to sale again, but had to be adjourned for want of bidders. At that stage, the petitioner moved Ext.P1 application seeking reduction of the upset price from Rs.28,00,000/- to Rs.20,00,000/-. Ext.P3 is filed to get the building in the property valued with the aid of a Civil Engineer. The court below dismissed both applications by Exts.P2 and P4 orders. Aggrieved, this original petition filed.
2. Learned Counsel for the petitioner submitted that the value of the property admeasuring 4.42 Ares is fixed at Rs.1,13,953/-. It is submitted that the building in the property is more than ten years old and its construction is not complete. The property is situated in a remote area and has no direct access from the main road. According to the learned Counsel, these relevant factors were not taken into consideration by the court below while fixing the upset price at Rs.28,00,000/-. It is submitted that absence of bidders, after refixing the upset price was refixed at Rs.28,00,000/- is proof that the price fixed is exorbitant. It is contended that no prejudice will be caused by the building being valued by a competent Civil Engineer.
3. The applications for reducing the upset price and valuing the building were dismissed mainly for the reason that the petitioner did not file objection to the earlier Commissioner's report. Even though the reasoning is correct, the fact remains that, after refixing the upset price at Rs.28,00,000/-, there has been no bidders for the property and the petitioner/decree holder is yet to enjoy the fruits of a decade back compromise decree. In circumstances like this, attempt of the court should be given effect to the decree, if necessary by reducing the upset price.
In the result, the original petition is disposed of as under;
(i) Ext.P4 order is set aside and E.A.No.345 of 2018 is allowed. The court below shall appoint an Advocate Commissioner to assess the value of the building in the decree schedule property with the aid of a competent Civil Engineer.
(ii) Based on the valuation, the court below shall take a decision on the petitioner's request for reduction of upset price.
(iii) Being an execution petition of the year 2014, the court below shall take earnest efforts to dispose the matter at the earliest.
Sd/-
V.G.ARUN JUDGE Scl/
APPENDIX OF OP(C) 872/2019 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPLICATION IN EA NO.
247/2018 EXHIBIT P2 TRUE COPY OF THE ORDER DATED 08-10-
2018 IN E.A NO. 217/2018 EXHIBIT P3 TRUE COP[Y OF THE APPLICATION IN EA NO. 345/2018 EXHIBIT P4 TRUE COPY OF THE ORDER DATED 21-01-
2019 IN E.A NO. 345/2018
