Ajaykumar vs Ramdas

Type Court Judgment Court Kerala Decided Sep 30, 2023

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Citation: sooperkanoon.com/1363724
Court: Kerala High Court
Judge: Honourable Mr. Justice Devan Ramachandran
Decided On: Sep 30, 2023
Case Number: OP(C)/1110/2023

Parties & Advocates

Appellant / Petitioner

Ajaykumar

Respondent

Ramdas

Excerpt

.....price in the locality; and therefore, that the impugned order is without error.4. as i have already said above, the real disputation inthis case, is as to the value that the property may fetch in an execution proceedings. this is a pure question of fact, which cannot be decided by this court, while acting under article 227 of the constitution of india.5. i notice from the impugned order that executioncourt has found that the upset price fixed for the property is adequate. however, there is nothing in the said order to establish this in any manner; and therefore, this court is unable to assess it judicially. in the afore circumstances, i allow this writ petition and set aside the order impugned; thus directing the learned sub judge, chavakad, to reconsider e.a.no.103/23, after hearing both sides, thus resulting in an appropriate order, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. i, however, make it clear that i have not entered into the merits of the rival contentions and that they are left open to be ..4..decided appropriately by the learned sub judge; and the orderto be issued by it shall reflect relevant consideration, as also the reasons for it. sd/- devan ramachandran, judge acr ..5.. appendix of op(c) 1110/2023 petitioner exhibits exhibit p1 true copy of the affidavit andpetition in e.a. no. 347 of 2018 in e.p. no. 34 of 2016 in o.s. no. 444 of 2013 on the file of sub court, exhibit p2 true copy of the order dated 8-1-2019 in e.a. no. 347 of 2018 in e.p. no. 34 of 2016 in o.s. no. 444 of 2013 on the file of sub court, chavakkad exhibit p3 true copy of the order dated 4-11-2019 e.a. no. 81 of 2019 in e.p. no. 34 of 2016 in o.s. no. 444 of 2013 on the file of sub court, chavakkad exhibit p4 true copy of the affidavit and petition in e.a. no. 103 of 2023 in e.p. no. 34 of 2016 in o.s. no. 444 of 2013 on the file of sub court, exhibit p5 certified copy of the order dated 16- 2-2023 in e.a......

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN SATURDAY, THE 30TH DAY OF SEPTEMBER 2023 / 8TH ASWINA, OP(C) NO. 1110 OF 2023 AGAINST THE ORDER/JUDGMENT EP 34/2016 OF SUB COURT, PETITIONER/DECREE HOLDER: AJAYKUMAR AGED 53 YEARS S/O MULLASSERY VILASINI AMMA, LOKAMALESWARAM VILLAGE/DESOM/POST, THRISSUR DISTRICT, PIN - 680664 BY ADV P.K.RAVISANKAR RESPONDENTS/JUDGMENT DEBTOR: RAMDAS AGED 76 YEARS S/O KARUKAPARAMBIL KRISHNAN, THALIKULAM VILLAGE/POST, TAHMBINKADAVU DESOM, THRISSUR DISTRICT, PIN - 680569 BY ADVS. K.S.BABU N.SUDHA(S-652) BABU SHANKAR(K/821/2010) ALVIN JEWEL S.S.(K/000876/2019) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ..2..

JUDGMENT

The controversy projected in this case is essentially with respect to the value to be fixed for the decree schedule property, so as to bring it to sale under execution proceedings relating to the judgment and decree in O.S.No.444/13 on the files of the Sub Court, Chavakkad.

2. Sri.Ravi Sankar P.K. - learned counsel for the

petitioner, explained that, even though the property was brought to sale at least twice, with an upset price fixed at Rs.50 Lakhs/- and Rs.43 Lakhs/- respectively, there were no bidders; and therefore, that his client moved E.A.No.81/2019, to reduce it to Rs.23 Lakhs/-, which has now been dismissed by the Trial Court, through a single line order, saying that it is exiguous. He asserted that it is not so; and that, going by the market price available to the properties in the area in question, even this figure may not be fetched in a court auction. He thus prayed that the impugned order be set aside and the Execution Court be directed to revise the upset price of the property, to the figure suggested by his client.

3. Smt.N.Sudha - learned counsel for the respondent,

..3.. on the other hand, submitted that Trial Court has fixed the upset price adverting to the notified fair price in the locality; and therefore, that the impugned order is without error.

4. As I have already said above, the real disputation in

this case, is as to the value that the property may fetch in an execution proceedings. This is a pure question of fact, which cannot be decided by this Court, while acting under Article 227 of the Constitution of India.

5. I notice from the impugned order that Execution

Court has found that the upset price fixed for the property is adequate. However, there is nothing in the said order to establish this in any manner; and therefore, this Court is unable to assess it judicially. In the afore circumstances, I allow this writ petition and set aside the order impugned; thus directing the learned Sub Judge, Chavakad, to reconsider E.A.No.103/23, after hearing both sides, thus resulting in an appropriate order, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. I, however, make it clear that I have not entered into the merits of the rival contentions and that they are left open to be ..4..

decided appropriately by the learned Sub Judge; and the order

to be issued by it shall reflect relevant consideration, as also the reasons for it. Sd/- DEVAN RAMACHANDRAN, JUDGE ACR ..5.. APPENDIX OF OP(C) 1110/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AFFIDAVIT AND

PETITION IN E.A. NO. 347 OF 2018 IN E.P. NO. 34 OF 2016 IN O.S. NO. 444 OF 2013 ON THE FILE OF SUB COURT, Exhibit P2 TRUE COPY OF THE ORDER DATED 8-1-2019 IN E.A. NO. 347 OF 2018 IN E.P. NO. 34 OF 2016 IN O.S. NO. 444 OF 2013 ON THE FILE OF SUB COURT, CHAVAKKAD Exhibit P3 TRUE COPY OF THE ORDER DATED 4-11-2019 E.A. NO. 81 OF 2019 IN E.P. NO. 34 OF 2016 IN O.S. NO. 444 OF 2013 ON THE FILE OF SUB COURT, CHAVAKKAD Exhibit P4 TRUE COPY OF THE AFFIDAVIT AND PETITION IN E.A. NO. 103 OF 2023 IN E.P. NO. 34 OF 2016 IN O.S. NO. 444 OF 2013 ON THE FILE OF SUB COURT, Exhibit P5 CERTIFIED COPY OF THE ORDER DATED 16- 2-2023 IN E.A. NO. 103 OF 2023 IN E.P. NO. 34 OF 2016 IN O.S. NO. 444 OF 2013 ON THE FILE OF SUB COURT, CHAVAKKAD

RESPONDENT EXHIBITS Exhibt R1 (b) The true copy of the objection filed by the respondent to E.A 102/2021 Exhibt R1 (a) E.A. The true copy of the objection filed by the judgment debtor Exhibt R1 (c) The true copy of the Order dated 20.09.2022 in E.P No. 34/2016 in O.S No. 444/2013 Exhibt R1 (d) The true copy of the fair value published by the Government of Kerala in the extraordinary gazette dated 25.03.2023 Exhibt R1 (e) The true copy of the certificate dated

09 th September, 2014 issued by Dr. Ajit Kumar Varma MS, Podiatric Surgeon, Endocrinology and Podiatry AIMS, Kochi 41

Same Court & Year Kerala · 2023 Same Parties Ajaykumar vs Ramdas Same Judge Honourable Mr. Justice Devan Ramachandran