IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4105 of 2009(L)
1. ASHOK RAMACHANDRAN,PROPRIETOR,
... Petitioner
Vs
1. K.RADHAMOHAN,KAILAS,EZHUKONE.P.O,
... Respondent
For Petitioner :SRI.V.BHASKARAN PILLAI
For Respondent :SRI.B.MOHANLAL
The Hon'ble MR. Justice K.T.SANKARAN
Dated :30/03/2009
O R D E R
K.T.SANKARAN, J.
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W.P.(C) No.4105 OF 2009
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Dated this the 30th day of March, 2009
JUDGMENT
The decree holder in O.S.No.168/2002, Sub Court,
Kollam which is pending in execution in E.P.No.30/2004 on the
file of the Sub Court, Kottarakkara challenges Ext.P8 order
dated 19.01.2009 passed by the executing court by which the
prayer made by the judgment debtor to enhance the upset
price of the property to be sold was allowed and the upset
price was fixed at Rs.12,50,000/-.
2. The decree is for Rs.3,76,387/- together with interest.
The court below fixed the upset price at Rs.6,00,000/-. No
bidders were present on the date fixed for sale. Pointing out
that in E.P.No.28/2004 in O.S.No.86/2002 in which the
petitioner is the decree holder, the property was sold in
auction and was purchased by the petitioner/decree holder for
a sum of Rs.12,50,000/-, the judgment debtor in the present
case filed the application for enhancing upset price. That
application was allowed by the court.
3. The decree holder opposes the enhancement of the
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upset price. According to the decree holder, the property
would not fetch a value of Rs.12.5 Lakhs. According to the
judgment debtor, the property is very valuable and the value
fixed at Rs.12.5 Lakhs is on the lower side. If no upset price is
fixed, the judgment debtor says that his property would be sold
for a low price.
4. It is stated in the Writ Petition and it is admitted by
the respondent that in E.P.No.38/2006 in O.S.No.190/2002 in
which one Jayaraj is the decree holder, the very same property
was sold in auction and it was purchased by one Jayaraj, the
decree holder therein for a sum of Rs.3,10,000/-. The
petitioner/decree holder submits that he has filed a claim
petition in that Execution Petition and that it is pending
disposal. The sale is not confirmed. The learned counsel for the
respondent/judgment debtor submitted that the judgment
debtor has filed an application to set aside the sale and that
the said application is pending.
5. It is not proper for me to decide in this Writ Petition
whether the decree holder is entitled to proceed with the
execution in the present case in view of the auction sale
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already held in E.P.No.38/2006 in O.S.No.190/2002 since the
matter has not become final in that proceeding. I am not
expressing any opinion on that contention put forward by
either side.
6. At the same time, the question to be decided by me is
whether Ext.P8 order dated 19.01.2009 passed by the
executing court enhancing the upset price is legal or proper. It
is well settled that the court need not fix the upset price in a
court auction sale. After the amendment of Rule 66 of Order
XXI of the Code of Civil Procedure by the 1976 amendment
Act, the second proviso to Sub Rule 2 specifically provides that
nothing in the Rule shall be construed as requiring the court to
enter in the proclamation of sale its own estimate of the value
of the property, but the proclamation shall include the
estimate, if any, given by either or both of the parties. It is also
well settled that if the court fixes the upset price, it must be
after passing a judicially considered order. Therefore, Ext.P8
order dated 19.01.2009 is liable to be set aside. I do so.
7. The court below shall issue directions to incorporate
in the sale proclamation the value of the property as suggested
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by the decree holder and judgment debtor. Both parties would
be entitled to file statements showing the value of the property
and produce such materials which are necessary to be
incorporated in the sale proclamation. The court below shall
consider the same and issue appropriate directions for
incorporation of the necessary details in the sale proclamation.
The Writ Petition is allowed as above.
K.T.SANKARAN
JUDGE
pac