LAWS(KER)-2014-7-218

M.D. AUGUSTHY Vs. CATHOLIC SYRIAN BANK LTD.

Decided On July 16, 2014
M.D. Augusthy Appellant
V/S
CATHOLIC SYRIAN BANK LTD. Respondents

JUDGEMENT

(1.) The revision petitioner is the judgment-debtor in E.P. No. 217/05 in OS No. 415/98 on the files of the Additional Sub Court, North Paravur. The above Execution Petition was filed in execution of a decree for realisation of an amount of Rs. 1,27,152/- with interest @ 17.5% per annum from the date of the suit till realisation. The Execution Court proceeded with the execution proceedings. In the proclamation, upset price for the property is shown as Rs. 5 lakhs, which is much below the amount shown as decree debt. The petitioner has filed an objection contending that the upset price fixed for sale is very low and inadequate with the actual value of the said property. But the Court below rejected the contentions raised by the petitioner and proclaimed to sell on 12/03/2010 and to report on 15/03/2010. The legality and propriety of this order are under challenge in this Revision Petition. The learned counsel for the revision petitioner submits that the Court below failed to exercise jurisdiction vested in it. In spite of the specific objection that even a 'one cent' property would fetch at least Rs. 40,000/-, the Court below ordered to sell the property having an extent of 1.62 Acres in auction on the basis of Rs. 5 lakhs as upset price. According to the learned counsel, the sale of only a lesser extent of property is required for the satisfaction of the decree amount. But the Court below discarded the objection and rejected the contentions by a non-speaking order confined to only in one sentence.

(2.) The short question that arises for consideration is whether the Court below has failed to exercise jurisdiction vested in it or exercised the jurisdiction illegally or with material irregularity.

(3.) Apparently, it is seen that the impugned order under challenge is a cryptic as well as laconic order confined to one sentence. Needless to say, the Court below miserably failed to exercise jurisdiction vested in it, in view of Order XXI Rule 64 of the CPC. The statutory mandate under Order XXI Rule 64 is that any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same. It is further clarified under Order XXI Rule 66(2) that proclamation shall be drawn up specifying as fairly and accurately as possible the property to be sold or where a part of the property would be sufficient to satisfy the decree, such part. In all execution proceedings, the Court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may be seen necessary to satisfy the decree. If the property is large and the decree to be satisfied is small, the Court shall bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree-holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provision of law, only such portion of the property should be sold. This is not just a discretion, but an obligation imposed on the Court. This is the view of the Apex Court in Ambati Narasayya v. M. Subba Rao and Another, 1990 AIR(SC) 119 In the light of the above discussions, the impugned order under challenge is liable to be set aside and I do so. The Execution Court is directed to pass order afresh in view of the above observation also, after affording an opportunity of being heard to the petitioner.