Kerala High Court
I.T. Thankachan vs Shaji Joseph on 20 December, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
MONDAY, THE 13TH DAY OF FEBRUARY 2017/24TH MAGHA, 1938
OP(C).No. 2325 of 2016 (O)
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EP.NO.4/2014 IN OS.378/2011 OF ADDITIONAL SUB COURT-I, ERNAKULAM
.....
PETITIONER(S)/PETITIONER:
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I.T. THANKACHAN,AGED 42 YEARS,
S/O.THOMAS,INCHIKALAYIL HOUSE,KEECHERY DESOM,
KEECHERY VILLAGE,KANAYANNUR TALUK,
ERNAKULAM-682 315, REPRESENTED BY HIS POWER OF
ATTORNEY HOLDER I.T.SABU,AGED 50 YEARS,S/O.THOMAS,
INCHIKALAYIL HOUSE,KEECHERY DESOM,KEECHERY VILLAGE,
KANAYANNUR TALUK,ERNAKULAM-682 315.
BY ADVS.SRI.VARGHESE C.KURIAKOSE
SRI.P.V.VARGHESE (KANJIRAMATTOM)
RESPONDENT(S)/RESPONDENT:
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SHAJI JOSEPH, AGED 39 YEARS,
S/O JOSEPH,ARACKAL HOUSE, KULAYETTIKKARA DESOM,
KULAYETTIKARA P.O, KANAYANNUR TALUK,
ERNAKULAM DISTRICT-682 315.
BY ADV. SRI.SHAJI THANKAPPAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
13-02-2017, ALONG WITH OPC. 3119/2016, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
msv/
OP(C).No. 2325 of 2016 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE PHOTOSTAT COPY OF EXECUTION PETITION PREFERRED
SEEKING TO EXECUTE THE DECREE DATED 20.12.2012
EXHIBIT P2 TRUE PHOTOSTAT COPY OF E.A.802/2015 SEEKING TO CONDUCT
SALE OF THE PROPERTY ATTACHED IN THE ORIGINAL SIDE
EXHIBIT P3 TRUE PHOTOSTAT COPY OF COUNTER AFFIDAVIT HAS BEEN
FILED BY THE RESPONDENT IN E.A.802/2015
EXHIBIT P4 TRUE PHOTOCOPY OF ATTACHMENT SCHEDULE
EXHIBIT P5 TRUE PHOTOSTAT COPY OF OBJECTION TO THE DRAFT SALE
PROCLAMATION
EXHIBIT P6 TRUE PHOTOSTAT COPY OF ORDER THAT THE UPSET PRICE WAS
FIXED TAKING INTO CONSIDERATION THE EXISTENCE OF THE
BUILDING
EXHIBIT P7 TRUE PHOTOSTAT COPY OF ORDER IN O.P.(C)NO.1127/2016 ON
THE FILES OF THIS HON'BLE COURT
EXHIBIT P8 TRUE PHOTOSTAT COPY OF E.A.753/2016
EXHIBIT P9 TRUE PHOTOSTAT COPY OF COMMISSION REPORT FILED BY'
SMT.ASWATHI A.
EXHIBIT P10 TRUE PHOTOSTAT COPY OF REPORT OF THE VALUER
EXHIBIT P11 TRUE PHOTOSTAT COPY OF ORDER DATED 25.08.2016 PASSED
THE LEARNED EXECUTING COURT.
RESPONDENT(S)' EXHIBITS
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NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
A.MUHAMED MUSTAQUE, J.
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O.P.(C). Nos.2325/16 & 3119/2016
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Dated this the 13th day of February, 2017
J U D G M E N T
These original petitions are filed by the judgment debtor as well as the decree holder. The judgment debtor filed O.P.(C).No.3119 of 2016 aggrieved by the valuation of a portion of the property which is earmarked for sale in the execution petition. The decree holder filed O.P.(C).No.2325 of 2016 aggrieved by the restriction in the execution petition to sell a portion of the property.
2. Having gone through the order, I do not find any infirmity in the order impugned. Regarding the valuation of the property, the valuation was done by a competent person. With regard to the claim of the decree holder, the sale of a portion of the property is not sufficient to satisfy the decree amount, this court is of the view that if the court below finds that there are no bidders for the property now earmarked for sale it is open for the court below to auction the entire property for sale. The petitioner now submits that he is not taking part in the auction to the modified portion of OPC 2325/2016 & 3119/2016 -:2:- the extent applicable to the property. However, he may be given liberty to take part in the auction when the entire property is put in auction. This submission is recorded. The court below shall complete the entire exercise before summer holidays.
The original petitions are disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms