High Court Kerala High Court

Noorukannu Mahisu vs Nazarudheen on 30 March, 2010

Kerala High Court
Noorukannu Mahisu vs Nazarudheen on 30 March, 2010
       

  

  

 
 
  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
                     ---------------------------
                 W.P.(C).No.34104 OF 2009
                  -----------------------------------
           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

W.P.(c) No.34104/09 3

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

W.P.(c) No.34104/09 5

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

W.P.(c) No.34104/09 6

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.