Charly @ Peter vs Joseph Shabu

Type Court Judgment Court Kerala Decided Jun 14, 2023

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https://sooperkanoon.com/case/1351998

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Citation: sooperkanoon.com/1351998
Court: Kerala High Court
Judge: Honourable Mr. Justice P.Somarajan
Decided On: Jun 14, 2023
Case Number: OP(C)/857/2023

Parties & Advocates

Appellant / Petitioner

Charly @ Peter

Respondent

Joseph Shabu

Excerpt

.....of title of the year 2005 with a little enhancement of rs.25,100/-. in the meanwhile, an o.p.(c)no.857/2023 3 application under rule 90 of order xxi c.p.c. was preferred so as to get the sale set aside and the matter now stands posted tomorrow. in fact, there is no reason for interfering with the fixation of upset price. since an application under rule 90 of order xxi c.p.c. is pending consideration, the court is expected to consider the same at first before confirmation of the sale. hence, there will be a direction to the execution court to take up the application under rule 90 of order xxi c.p.c. before confirmation of the sale within a time schedule of three months from today. the execution court may also explore the possibility of a settlement in the matter. if it is found necessary, the judgment-debtor will be at liberty to file an application under rule 89 of order xxi c.p.c. by deposit of the amount as mandated thereunder, provided that he should withdraw the application under rule 90, now pending consideration before resorting to rule 89 of order xxi c.p.c. the o.p.(c) will stand disposed of accordingly. sd/- p.somarajan judge sv o.p.(c)no.857/2023 4 appendix of op(c) 857/2023 petitioner's exhibits exhibit p1 the true copy of the decree in o.s. no. north paravoor dated 20.06.2019 exhibit p2 the true copy of the judgment in o.s. no. north paravoor dated 20.06.2019 exhibit p3 the true copy of the plaint in o.s. no. munsiff court, north paravoor dated 20.06.2019 exhibit p4 the true copy of the written statement ino.s. no. 706/2013 o.s. no. 706/2013 of the honourable munsiff court, north paravoor dated 20.06.2019exhibit p5 the true copy of the execution petition filed by the respondent before the munsiff court, north paravoor in e.p. no 201/2019 dated 30.10.2019 exhibit p6 the true copy of the objection filed by the petitioner in ep no. 201/2019 in o.s. no. paravoor dated 20.03.2021 exhibit p7 the true copy of the e.a. no. 142/2021 filed by the.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 14TH DAY OF JUNE 2023 / 24TH JYAISHTA, 1945 OP(C) NO. 857 OF 2023 AGAINST THE PROCEEDINGS IN E.P.NO.201/2019 IN O.S.NO.706/2013 OF MUNSIFF COURT, NORTH PARAVUR
PETITIONER/JUDGMENT DEBTOR/DEFENDANT: CHARLY @ PETER, S/O OUSO AGED 63 YEARS, CHERUTHURUTHY, SOUTH CHITTOOR, CHERANELLOOR VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT -, PIN - 682027 BY ADV R.DIVAKARAN RESPONDENT/DECREE HOLDER/PLAINTIFF: JOSEPH SHABU S/O. PAPPACHAN, AGED 48 YEARS, RESIDING AT VALIYAPARAMBIL, CHITTOOR, CHERANELLOOR VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN - 682027 BY ADVS. LAL K JOSEPH P.MURALEEDHARAN (THURAVOOR)(K/1651/2000) T.A.LUXY(L-78) SURESH SUKUMAR(K/634/1997) ANZIL SALIM(K/000447/2018) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C)No.857/2023 2

JUDGMENT

The petitioner came up challenging Ext.P16 proceedings, by which the objection raised by the judgment-debtor pertaining to the fixation of upset price in the proclamation for sale was repelled. Upset price was entered based on Ext.P13 certification. This is the property purchased by the judgment-debtor in the year 2005, wherein also in and around the very same amount was shown as the sale consideration. Subsequently, the property was sold in court auction and the decree holder bid the same with permission of the court for an amount of Rs.8,25,100/-. The upset price shown in the proclamation comes to Rs.8,00,000/-. In fact, the sale was conducted for an amount, a little more than the amount shown as upset price and it was bid by the decree holder with permission. Prima facie, it appears that the enhancement of value of the property by the time when it was brought up for sale is not reflected in the amount of bid, which comes to the very same consideration shown in the document of title of the year 2005 with a little enhancement of Rs.25,100/-. In the meanwhile, an O.P.(C)No.857/2023 3 application under Rule 90 of Order XXI C.P.C. was preferred so as to get the sale set aside and the matter now stands posted tomorrow. In fact, there is no reason for interfering with the fixation of upset price. Since an application under Rule 90 of Order XXI C.P.C. is pending consideration, the court is expected to consider the same at first before confirmation of the sale. Hence, there will be a direction to the execution court to take up the application under Rule 90 of Order XXI C.P.C. before confirmation of the sale within a time schedule of three months from today. The execution court may also explore the possibility of a settlement in the matter. If it is found necessary, the judgment-debtor will be at liberty to file an application under Rule 89 of Order XXI C.P.C. by deposit of the amount as mandated thereunder, provided that he should withdraw the application under Rule 90, now pending consideration before resorting to Rule 89 of Order XXI C.P.C. The O.P.(C) will stand disposed of accordingly. Sd/- P.SOMARAJAN JUDGE sv O.P.(C)No.857/2023 4 APPENDIX OF OP(C) 857/2023 PETITIONER's EXHIBITS Exhibit P1 THE TRUE COPY OF THE DECREE IN O.S. NO. NORTH PARAVOOR DATED 20.06.2019 Exhibit P2 THE TRUE COPY OF THE JUDGMENT IN O.S. NO. NORTH PARAVOOR DATED 20.06.2019 Exhibit P3 THE TRUE COPY OF THE PLAINT IN O.S. NO. MUNSIFF COURT, NORTH PARAVOOR DATED 20.06.2019 Exhibit P4 THE TRUE COPY OF THE WRITTEN STATEMENT IN

O.S. NO. 706/2013 O.S. NO. 706/2013 OF THE HONOURABLE MUNSIFF COURT, NORTH PARAVOOR DATED 20.06.2019

Exhibit P5 THE TRUE COPY OF THE EXECUTION PETITION FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, NORTH PARAVOOR IN E.P. NO 201/2019 DATED 30.10.2019 Exhibit P6 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN EP NO. 201/2019 IN O.S. NO. PARAVOOR DATED 20.03.2021 Exhibit P7 THE TRUE COPY OF THE E.A. NO. 142/2021 FILED BY THE PETITIONER IN THE EXECUTION PETITION DATED 18.10.2020 Exhibit P8 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO THE RULE 66 NOTICE IN THE EXECUTION PETITION DATED 18.12.2021 Exhibit P9 THE TRUE COPY OF THE RECEIPT ISSUED FROM THE TREASURY, NORTH PARAVOOR DATED 17.03.2022 Exhibit P10 THE TRUE COPY OF THE RECEIPT ISSUED BY THE RESPONDENT DATED 23.03.2022 Exhibit P11 THE TRUE COPY OF THE AFFIDAVIT AND THE DRAFT O.P.(C)No.857/2023 5 SALE PROCLAMATION DATED 04.01.2022 Exhibit P12 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO THE DRAFT SALE PROCLAMATION ON 14.01.2022 Exhibit P13 THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, ALANGADU VILLAGE DATED 26.10.2021 Exhibit P14 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER DATED 18.12.2021 Exhibit P15 THE TRUE COPY OF THE EA NO 96/2023 FILED BY THE PETITIONER TO GRANT TIME TO PAY THE REMAINING AMOUNT TO THE DECREE HOLDER DATED 16.02.2023. Exhibit P16 THE COPY OF THE PROCEEDINGS OF THE E.P. NO. DATED 17.02.2023 Exhibit P17 THE TRUE COPY OF THE PETITION FILED IN EA NO BEFORE THE HON'BLE MUNSIFF'S COURT NORTH PARAVOOR DATED 30/3/2023

Same Court & Year Kerala · 2023 Same Parties Charly @ Peter vs Joseph Shabu Same Judge Honourable Mr. Justice P.Somarajan