Kerala High Court
M.Vijayalakshmi vs Kerala State Handloom Development ...
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
MONDAY, THE 1ST DAY OF APRIL 2013/11TH CHAITHRA 1935
OP(C).No. 936 of 2011 (O)
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(OS.32/1989 of SUB COURT, HOSDRUG)
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PETITIONERS/PETITIONERS:
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1. M.VIJAYALAKSHMI, D/O. K.P.DAMODARAN,
RESIDING AT KALIKKADAVATHU
PALLIKKARA VILLAGE, HOSDRUG TALUK, P.O.KEEKAN
KASARAGOD DISTRICT.
2. M.VIJAYAKRISHNAN, S/O. K.P.DAMODARAN, RESIDING AT DO-DO-
3. M.RAJALAKSHMI,
D/O.K.P.DAMODARAN, RESIDING AT DO-DO-
4. M.BHAGYALAKSHMI,D/O.K.P.DAMODARAN, RESIDING AT DO-DO-
5. M.DHANALAKSHMI,D/O.K.P.DAMODARAN, RESIDING AT DO-DO-
6. M.JAYALKSHMI, D/O.K.P.DAMODARAN, RESIDING AT DO-DO-
7. M.RADHAKRISHNAN, S/O.K.P.DAMODARAN, RESIDING AT DO-DO-
BY ADV. SRI.JAWAHAR JOSE
RESPONDENT:
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KERALA STATE HANDLOOM DEVELOPMENT CORPORATION LTD.
REGISTERED OFFICE, P.M.32/244
KANNUR, REPRESENTED BY ITS REGIONAL, MANAGER.
BY ADVS.SRI.E.K.NANDAKUMAR (SR.)
SRI.A.K.JAYASANKAR NAMBIAR
SRI.K.JOHN MATHAI
SRI.P.BENNY THOMAS
SRI.P.GOPINATH
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01-04-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
VK
OP(C).No. 936 of 2011 (O)
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APPENDIX
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PETITIONER'S EXHIBITS
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EXT.P1. COPY OF REPORT AND PLAN SUBMITTED BY THE COMMISSIONER IN
E.P.1/2004 IN O.S.32/1989, SUB COURT, HOSDRUG)
EXT.P2. COPY OF JUDGMENT DATED 23.3.2009, IN WPC 9301/2009
EXT.P3. COPY OF ORDER DATED 25.1.2011 IN E.P. NO.1 OF 2004 AND E.A.
22/2008 IN O.S.NO.32 OF 1989, SUB COURT, HOSDRUG)
ANNEXURE-1. COPY OF PLAN RELATING TO ITEM NO.1.
RESPONDENT'S EXHIBITS : NIL
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/ TRUE COPY /
P.A. TO JUDGE
VK
THOMAS P. JOSEPH, JUDGE.
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O.P.(C). No. 936 of 2011
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Dated this the 1st day of April, 2013.
JUDGMENT
Ext.P3, order dated 25.01.2011 in E.P. No. 1 of 2004 in O.S No. 32 of 1989 of the Sub Court, Hosdurg is under challenge at the instance of petitioners/judgment debtors.
2. Respondent has obtained a decree for money. Its worry started in the course of execution proceeding. Three items of properties belonging to the petitioners was brought up for sale. Respondent, probably in fairness thought that proceeding against item No.1 of the properties - one acre in R.S. No. 77/3 of Keekan village would be sufficient to discharge the decree debt which as on date of filing of exeuciton petition was `603149 with future interest and execution cost. Hence, respondent filed E.A.No. 22 of 2008 on which the executing court passed a criptic order which petitioners challenged in this Court in W.P.(C) No. 9301 of 2009. This Court disposed of that writ petition as per Ext.P2, judgment directing the executing court to consider E.A. No. 22 of 2008 in the light of objections raised by the petitioners. The exeucuting court was also directed to decide whether sale of portion of item No.1 is sufficient or whether item No. 1 can be sold in lots and pass appropriate orders. O.P.(C) No. 936/20111 : 2 :
3. Pursuant to Ext.P2, judgment, the executing court passed order on 05.10.2009. The impugned order was passed by the executing court on 25.01.2011.
4. This Court passed interim order on 07.03.2011 directing petitioner to produce a sketch indicating which portion of item No.1 could be sold first for realisation of the decree debt. Petitioner has accordingly filed a sketch (Annexure I). Learned counsel for petitioners submits that the Advocate Commissioner has valued the property based on available records and also as per fair value fixed by the State Government. Learned counsel submits that as per Annexure- I plan, what is available for sale in item No.1 is 40 cents marked by the village officer in Annexure I as "No. 77/3B". According to the learned counsel, rest of the property in item No. 1 takes in the theyyam thara.
5. It is unfortunate that a decree for money obtained in a suit of the year, 1989, though exeucution petition was filed in the year, 2004, remains unexecuted for whatever reasons it be. That state of affairs cannot be allowed to continue. If petitioners are not prepared to pay the amount, property has to be sold. However, respondent filed E.A. No. 22 of 2008 to delete item Nos. 2 and 3 from sale proclamation and was satisfied with proceeding against item No. 1 for the time O.P.(C) No. 936/20111 : 3 : being. Hence, that stand of the first respondent should remain for the time being.
6. Having heard learned counsel on both sides, I am inclined to think that portions of item No. 1 excluding the theyyam thara is liable to be sold based on value of that portion fixed as per fair value fixed by the State Governemnt. If sale of that portion is not sufficient to discharge the decree debt, then it is open to the respondent to proceed against item Nos. 2 and 3 as provided under the law.
Resultantly, this Original Petition is disposed of as under:
1.It is made clear that respondent can proceed against that portion of item No.1 execluding the theyyam thara.
2.Value of that portion of item No.1 shall be fixed on the basis of fair value for the amount fixed by the State Government.
3.In case sale of the said portion is not sufficient to discharge the decree debt, it is open to the respondent to proceed against other items of properties.
sd/- THOMAS P. JOSEPH, JUDGE.
rv O.P.(C) No. 936/20111 : 4 :