IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 307 of 2008()
1. CHANDRASEKHARAN, S/O. CHERINKAL KRISHNAN
... Petitioner
Vs
1. M.VISWANATHAN, S/O. MADHAVAN, AGED 58
... Respondent
For Petitioner :SRI.K.P.BALAGOPAL
For Respondent :SRI.P.R.VENKETESH
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :12/08/2009
O R D E R
P.R.RAMAN & P.BHAVADASAN, JJ.
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F.A.O. No.307 of 2008
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Dated this the 12th August, 2009
J U D G M E N T
Raman, J.
The appellant is the judgment debtor. The suit,
O.S.No.607 of 1995, on the file of Sub Court, Palakkad was
decreed in favour of the plaintiff. In execution of the money
decree, E.P. was filed. The property of the appellant was
brought to sale and purchased by the decree holder himself for
an amount of Rs.1,40,639/=. The sale was conducted on
19.12.2003. The extent of the property is 1.02 acres of paddy
field. The upset price fixed was Rs.1,35,000/=. After the sale,
the appellant-petitioner preferred the present E.A.No.23/2004 for
setting aside the sale under Order XXI Rule 90 of Code of Civil
Procedure, inter alia contending that that the court below did not
apply its mind as to whether such a large extent of 1.02 acres of
paddy field is to be sold or only a portion of it need be sold for
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2
satisfying the decree debt. In support of the plea, appellant
also produced documents and stated that as per that document,
five cents was sold for Rs.25,000/=. But the court below found
that it cannot be compared with plaint schedule property in any
manner. It is pointed out that the property covered by the
document is also in the same survey number. No discussion is
made regarding the same. Other documents said to have been
produced is not even referred to. In the circumstances, it is
contended that the court below ought to have allowed the
application and set aside the same.
2. Per contra, the learned Counsel,
Sri.P.R.Venkitesh, appearing on behalf of the respondent would
contend that the property was sold after Rule 66 notice. No
objection was raised that the property is situated in a remote
area and it will fetch the more value than the same has been
sold. If, as a matter of fact, the appellant had any such
contention that the property will fetch more than the upset price
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3
fixed, nothing prevented him from producing materials to show
that it will fetch a higher price. Further, it is shown that except
producing the documents, nobody was examined to prove those
documents. In such circumstances, it is contended that court
below had applied its mind to all the aspects of the matter and
hence contended that no interference is called for.
3. We have heard both sides. The property is
situated in a remote area, but the extent of the property is 1.02
acres of paddy field. The property is still in the possession of the
judgment debtor. The decree is for money and it is only in the
absence of other purchasers that the property was purchased by
the decree holder. But then, the question would be whether it is
necessary to sell the entire property or only a portion is required
to be sold. There is a duty cast on the court, as held by this
Court in Thankamma v. Leelamma (2008 (2) KLT 500), before
the property is put to sale. If so, there will be material
irregularity in the manner of conduct of the sale. The appellant is
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4
also equally at fault in not adducing any evidence in support of
his contention that his property will fetch higher value. Except
producing two documents, he did not mount the box nor any
person was examined. Placed in such a position, the course open
to us is to direct the judgment debtor to deposit the entire
amount that may be due to the decree holder within a reasonable
time, as a condition for setting aside the sale.
Accordingly, we direct that if an amount of
Rs.1,89,000/= is deposited by the appellant herein within a
period of six weeks from today, the sale will stand set aside,
failing which this appeal will stand dismissed and it will be open
to the decree holder to take further proceedings in accordance
with law. The stamp paper, if any, produced by the decree
holder will be returned. In case, the sale certificate is already
issued, the court will cancel the deed so as to enable the
respondent to claim refund of the amount from the District
Collector treating the same as defaced, of course after deducting
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the expenditure as per the Statute. The appellant shall
approach the District Collector for refund of the same, and the
District Collector will allow refund of the amount, after deducting
the expenditure, as per the Statute.
The appeal is allowed as above.
P.R.RAMAN, JUDGE
P.BHAVADASAN , JUDGE.
nj.