Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH DAY OF DECEMBER 2012 29TH AGRAHAYANA 193 OP(C).No. 4469 of 2012 (O) -------------------------- AGAINST ORDER DATED 25 09.2012 IN EA NO.142 OF 201.IN EP.NO.28/2011 IN OS.217/2008 of SUB COURT, CHERTHALA PETITIONER(S): ------------- DHANANJAYAN, S/O. VIJAYAN, AGED 4 YEARS, RESIDING AT PEEDIKACHIRAYIL, CHERTHALA EAST MURI, CHERTHALA, ALAPPUZHA. PIN ”
524. BY ADV. SRI.M.HARISHARMA RESPONDENT(S): -------------- SIVAKUMAR, S/O. RAMACHANDRAN, AGED 2 YEARS, RESIDING AT KUTHUTHIPARAMBIL, CHERTHALA NORTH MURI, CHERTHALA, ALAPPUZHA PIN ”
524. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: acd OP(C).No. 4469 of 2012 (O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF EP 28/2011 IN OS NO.217/08 OF SUBORDINATE COURT, CHERTHALA. EXT.P2: COPY OF E.A.142 OF 201.IN EP 2.OF 201.IN OS 21.OF 200.OF THE SUBORDINATE COURT, CHERTHALA. EXT.P3: COPY OF THE OBJECTION TO EA 142/12 FILED BY RESPONDENT. EXT.P4: COPY OF ORDER DATED 25 09-2012 IN EA 14.OF 201.IN EP 28/2011 IN OS NO.217/08 OF SUBORDINATE COURT, CHERTHALA. RESPONDENT'S EXHIBITS: NIL TRUE COPY PA TO JUDGE. acd THOMAS P. JOSEPH, J.
===================== Original Petition (civil)) No. 4469 of 2012 ============================== Dated this the 20th day of December, 2012 JUDGMENT The Judgment debtor in E.P. No. 28/2011 in O.S. No. 217 of 2008 of the Sub Court, Cherthala is aggrieved by Ext.P4, order dated 25.09.2012 on E.A. No. 142 of 2012.
2. The respondent has obtained a decree for recovery of Rs. 1,00,000/- with interest from the petitioner. The petitioner filed Ext.P2, application seeking permission of the executing court to arrange private sale of his property. That application was dismissed by Ext.P4, order as pre-mature.
3. It is submitted by the learned counsel that dismissal of E.A. No. 142 of 2012 is not correct.
4. Going through Rule 83 of Order XXI of the Code of Civil Procedure (for short, "the Code"), I am unable to accept the said contentions since Rule 83 could be invoked only after an order is made for sale of immovable property. Therefore the executing court was right in observing that Ext.P2, application is pre- mature.
5. It is pointed out by the learned counsel that since the O.P.(C) No. 4469 of 2012 -:
2. :- respondent has obtained a decree for recovery of money charged over property, the respondent has to first proceed against the charged property and only if that remedy is not successful, the respondent could proceed against the petitioner personally. Now the respondent is proceeding against the petitioner personally without exhausting his remedy against the charged property.
6. The correctness of that argument is not required to be decided here since the challenge in this proceeding is only against Ext.P4, order. I make it clear that it is open to the petitioner to resist personal execution on appropriate grounds as are available to him and if it arises for a decision. Resultantly, without prejudice to the right of the petitioner to raise appropriate defence to the personal execution against him as aforesaid, this original petition is dismissed. Sd/- THOMAS P.JOSEPH, JUDGE smv //True copy// P.A. To Judge