IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 852 of 2003()
1. N.SUBRAMAYA NAGARAJAN,
... Petitioner
2. N.MUTHUSWAMI, PARTNER, -DO- -DO-.
3. N.PADMANABHAN, PARTNER, -DO- -DO-.
4. N.LEXMIRAM, PARTNER, -DO- -DO-.
5. N.MANGAYARKARSI AMMAL,
6. N.SIVASURYA KUMAR, PARTNER, -DO- -DO-.
Vs
1. THE FINANCIAL CORPORATION,
... Respondent
2. M/S. NELLAI SONS, A PARTNERSHIP FIRM,
3. M.N.NAYAGOM, MG.PARTNER, -DO- -DO-.
4. (ADDL): M.P.DIVAKARAN,
For Petitioner :SRI.S.ANANTHASUBRAMANIAN
For Respondent :SRI.V.B.UNNIRAJ, SC, KFC
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :08/01/2008
O R D E R
HARUN-UL-RASHID, J.
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C.R.P. NO. 852 OF 2003
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Dated this the 8th day of January, 2008
O R D E R
Judgment debtors 2 to 6 and 8 have filed this revision petition
aggrieved by the order dated 10.2.2003 in E.P. No.96 of 1990 in O.P.(FC)
No.100 of 1982 on the file of the Additional District Court, Alappuzha.
The revision petitioners are partners of a firm represented by the Managing
Partner. By the impugned order, the court below overruled all the
objections raised by the judgment debtors to Rule 66 notice and ordered
proclamation and sale of the property on 27.3.2003.
2. The revision petitioners submitted before this Court that the
property belonging to them having an extent of 60 cents with a building is
situated in the heart of the commercial town in Alappuzha. According to
them, the property would fetch more than Rs.35 lakhs while the claim in
the execution petition is only Rs.3,35,000/-. It is also submitted that they
had applied for issuance of a commission to inspect the property and to file
a report as to whether sale of 2 cents of property will not be sufficient to
C.R.P. NO.852/2003 2
discharge the decree debt. It is further submitted that without considering
the objection regarding the value of the property and whether sale of a
portion of the property will satisfy the decree, the court below ordered
proclamation and sale of the charged property.
3. The court below, on a consideration of the objections raised by
the judgment debtors incorporated the objections regarding valuation in
the sale proclamation. The court below also held that the point as to
whether sale of a portion of the property will be sufficient to satisfy the
entire decree is a matter for concern only at the time when it comes up for
sale.
4. The revision petitioners contended that if the entire property
happened to be sold in execution of the decree in a case where sale of a
portion of the property will be sufficient to satisfy the decree, such a sale
will cause irreparable loss and injury to them. They also contended that
during all these years regular payments were made towards the decree
debt and that even at the time of filing the revision, an amount of
Rs.50,000/- was paid as directed by this Court. The question whether a
portion of the property alone is sufficient to satisfy the decree is a question
which was not gone into by the execution court. In view of the seriousness
C.R.P. NO.852/2003 3
of the situation and as submitted by the learned counsel appearing for the
revision petitioners that the property is a very valuable one fetching
several lakhs per cent, I am of the view that the court below should
bestow attention to the fact whether sale of a small portion of the property
will be sufficient for the purpose of satisfying the decree.
5. In the result, the Civil Revision Petition is disposed of directing
the court below to consider the question whether portion of the property
sought to be sold is sufficient for the purpose of proclamation of sale. The
court below shall dispose of the matter within a period of two months from
the date of receipt of a copy of this order.
The records shall be transmitted to the court below.
(HARUN-UL-RASHID, JUDGE)
sp/
C.R.P. NO.852/2003 4
HAURN-UL-RASHID, J.
C.R.P.NO852/2003
O R D E R
8TH JANUARY, 2008