IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34104 of 2009(O)
1. NOORUKANNU MAHISU,THOTTUVILAKATHE
... Petitioner
Vs
1. NAZARUDHEEN,S/O.NUHUKANNU,
... Respondent
2. K.M.ASHIK,
For Petitioner :SRI.R.GOPAN
For Respondent :SRI.T.A.UNNIKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :30/03/2010
O R D E R
P. BHAVADASAN, J
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W.P.(C).No.34104 OF 2009
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Dated this the 30th day of March, 2010
J U D G M E N T
This is a petition filed under Article 227 of
Constitution of India, wherein the petitioner assails Ext.P6
order whereby sale was conducted.
2. The petitioner is the defendant in O.S. 76/02,
which was a suit for specific performance of an agreement
for sale. According to the plaintiff, the defendant entered
into a contract for sale of 1.329 cents of land with building
for a total consideration of Rs.3,40,000/-. Plaintiff claimed
that advance amount of Rs.1,70,000/- was paid and balance
amount of Rs.2,00,000/- was to be paid at the time of
execution of sale deed. On 2.3.2002 the first defendant
obtained an additional sum of Rs.1,00,000/- as part of sale
consideration and gave a cheque as security for that
amount. Since there was failure on the part of the
defendant to execute the sale deed, specific performance
W.P.(c) No.34104/09 2
was claimed and in the alternative sought return of advance
amount paid by him.
3. By the judgment and decree dated 28.11.2007
the suit was decreed and the plaintiff was allowed to realise
the amount of Rs.1,70,000/- with 12% interest from the date
of the agreement till realisation. The judgment and decree
was challenged in A.S.51/08 before the District Court,
Thiruvananthapuram. Copy of the memorandum of appeal
is produced and marked as Ext.P2. In the meanwhile,
execution of decree was taken out by the first respondent by
filing E.P.56/08, copy of which is produced and marked as
Ext.P3.
3. The Tahsildar, Neyyattinkara produced
valuation certificate assessing valuation of the plaint
schedule property as Rs.2,50,000/- and the building as
Rs.80,000/-., copy of which is produced and marked as
Ext.P4. On 20.8.2009 the respondent filed objection to the
valuation certificate stating that the value assessed by the
Tahsildar is very low, the land will worth more than
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Rs.5,00,000/- per cent and the building will worth more than
Rs.2,00,000/-, copy of which is produced and marked as
Ext.P5.
4. It is pointed out by the petitioner herein that
without considering the objections of the petitioner, the
court below passed an order settling the sale proclamation.
Copy of the order dated 20.8.09 is produced as Ext.P6.
Notice was issued under Order 21 Rule 66 of C.P.C. whereby
the court fixed the upset price as Rs.2,50,000/- and sale was
scheduled to be held on 30.09.2009. Copy of the sale notice
is produced marked as Ext.P7. On 23.9.2009 claim petition
was filed as E.A.337/009 in E.P.56/08. It is pointed out that
he has already paid Rs.1,45,000/- towards decree amount
and the balance shall be paid in monthly installments of
Rs.10,000/-. Therefore he prayed for adjournment of the
sale dated 30.09.2009. On 30.09.2009 the executing court
took up E.A.337/09 and posted it for hearing on 5.12.2009.
Copy of the order is produced as Ext.P9.
5. On 30.09.2009 Amin conducted the auction
W.P.(c) No.34104/09 4
sale of the plaint schedule property. Property was sold for a
sum of Rs.2,50,500/-. On 15.10.2009 Amin filed necessary
report before the court. In the meanwhile, on 30.10.2009
the first respondent filed a statement before the court,
which showed an amount of Rs.5000/- had been paid
towards the decree debt. The first respondent had omitted
to account Rs.5,000/- paid by the petitioner on 17.1.2008.
Thereafter on 21.11.2009 E.A.439/09 in E.P.56/08 for setting
aside sale dated 30.09.2009, copy of which is produced as
Ext.P13. Grievance of the petitioner is that without
considering his claim for adjourning the sale to a future date,
court conduct the same on 30.09.2009. According to the
petitioner, the court below should have considered the
petition before conducting the sale.
6. At the time of admission of the writ petition an
interim order was passed not to confirm the sale until
further orders from this court.
7. It is pointed out that he has paid about
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Rs.1,45,000/- towards decree amount and sought time for
payment of the balance amount in monthly installments.
There is no justification on the part of the lower court in
declining to grant the said relief and proceed to conduct the
sale on 30.9.2009 itself. After conducting the sale no
purpose will be served in keeping his petition pending.
8. The present prayer on behalf of the petitioner
is to allow him to pay balance decree amount in
installments of Rs.10,000/- per month.
9. It has to be noticed that auction purchaser has
deposited the sale amount in court. True, the sale itself is
not confirmed and in the light of the facts stated above, it
is just and proper to set aside the sale and no particular
prejudice is caused to the auction purchaser. He is entitled
to an amount as contemplated under Order XXI Rule 89.
10. Considering the willingness expressed by the
petitioner to deposit the balance amount in monthly
installments, it is felt that it is only just and proper to set
aside the sale. Therefore the sale dated 30.9.2009 will
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stand set aside if the petitioner deposits 5% of the sale
amount deposited by the auction purchaser before that
court. The petitioner shall pay the decree debt in monthly
instalments of Rs.10,000/- subject to the result of the
appeal pending before the court. Auction purchaser would
be entitled to withdraw the amount deposited by him, if
any, also 5% of the amount deposited by the judgment
debtor within two weeks of re-opening of the courts after
summer vacation. The first instalment of Rs.10,000/- shall
be paid on or before 18.5.2010 and the subsequent
instalments on or before the 18th of the succeeding months.
If any of the instalments is defaulted, the execution
proceedings shall continue and the decree holder can realise
the balance amount in a lump sum.
This writ petition is disposed of accordingly.
P. BHAVADASAN, JUDGE.
Sou.