IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 6TH JULY 2010 / 15TH ASHADHA 1932 WP(C).No. 9800 of 2010(O) ------------------------- AGAINST THE ORDER IN EA 92/2009 IN EP 25/2005 IN ARC.1271/2002 of MUNSIFF COURT,PARAPPANANGADI .................... PETITIONER(S): --------------- THE PARAPPANANGADI CO-OPERATIVE SERVICE BANK LTD. NO.F.2302, PARAPPANANGADI, MALAPPURAM DISTRICT, REP. BY ITS SECRETARY, P.HAMZA, AGED 46 YEARS, S/O.BEERANKUTTY. BY ADV. SRI.K.P.SUDHEER SRI.V.C.MADHAVANKUTTY RESPONDENT(S): --------------- KOCHARIKANDI ABDURAHIMANKUTTY, S/O.MOHAMMED KUTTY, TIRURANGADI TALUK, PARAPPANANGADI AMSOM DESOM, MALAPPURAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.9800/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 CERTIFIED COPY OF EP 25/2005 DATED 31/12/2004 FILED BY PETITIONER IN ARC NO.1271/2002-03 BEFORE MUNSIFF COURT, PARAPPANANGADI AND THE DOCKET ORDER EXT.P2 CERTIFIED COPY OF EA NO.92/2009 IN EP 25/2005 FILED BY PETITIONER BEFORE MUNSIFF COURT, PARAPPANANGADI AND THE ORDER DATED 15.1.2010 IN EA NO.92/2009 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.9800 of 2010 -------------------------------------- Dated this the 6th day of July, 2010. JUDGMENT Petitioner/decree holder has to its credit an award in A.R.C.No.1271 of 2002-2003 allowing it to realise certain amount from respondent/judgment debtor and in execution of that award (E.P.No.25 of 2005 of the court of learned Munsiff Court, Parappanangadi) 10 ¼ cents belonging to the respondent was brought up for sale. Notice under Order XXI Rule 66 of the Code of Civil Procedure (for short, “the Code”) was given to the respondent. He appeared but did not prefer any objection. Executing court fixed the upset price at Rupees four lakhs and proclaimed the property for sale. But, there was no bidders and hence executing court posted execution petition for steps. Petitioner filed an application to reduce the upset price. That was objected by respondent. But executing court allowed the application and refixed upset price as Rs.3,75,000/-. Still there were no bidders. On a few other occasion also the same thing happened and upset price was ultimately reduced to Rs.3,50,000/-. Then also there was no bidders. On 27.03.2009 executing court knowing that there is no bidders to purchase the property at Rs.3,50,000/- directed petitioner to take steps. On 03.04.2009 petitioner filed E.A.No.92 of 2009 to reduce upset price. Respondent did not object to that application but executing court directed petitioner to produce valuation certificate of the property. On non-compliance of that direction executing court dismissed E.A.No.92 of 2009 on 15.01.2010 which is under WP(C) No.9800/2010 2 challenge in this Writ Petition. Learned counsel for petitioner contends that value of property (10 ¼ cents) is much less than Rs.3,50,000/- as that said property is situated within 100 metres of sea-shore and hence there is no possibility of construction being made there on account of coastal regulations and that is the reason why there is no bidders for the property. It is also contention of learned counsel that Rule 66 of Order 21 of the Code does not mandate that in every case executing court is bound to give its own estimate of value of property. According to the learned counsel it is impracticable to get valuation certificate from the authority concerned and it will require a number of documents to be produced by petitioner showing the value of property. Therefore learned counsel for petitioner requests that executing court may be directed to reconsider E.A.No.92 of 2009, reduce the upset price and put up the property for sale. 2. Though notice on this petition was served on respondent there is no response. The second proviso to Order XXI Rule 66 (2) of the Code states that nothing in that rule shall be construed as requiring the court to enter in the proclamation of sale its own estimate of value of the property, but proclamation shall include estimate if any given by either or both parties. In the case on hand executing court has chosen to state its own estimate of value of property, originally it was Rupees four lakhs which was reduced to Rs.3,50,000/- as there was no bidders for the property. Since there was no bidders as stated in E.A.No.92 of 2009 it is necessary to reduce the upset price. I must bear in mind the extent of land involved is only 10 ¼ cents and it is situated on the sea shore WP(C) No.9800/2010 3 as contended by learned counsel for petitioner which may be the reason for there being no bidders for the property. There is practical difficulty in petitioner getting valuation certificate as pointed out by counsel. In the circumstances dismissal of E.A.No.92 of 2009 for non-production of valuation certificate, I am not inclined to sustain. Executing court has to take a pragmatic approach having regard to various circumstances of the case and fix a reasonable amount as upset price so that there is possibility of having more bidders to purchase the suit property which might increase the price. In case executing court thinks that it is necessary to ascertain the value of property it will be open to the executing court to get the service of an Advocate Commissioner if necessary with the assistance of an expert. Resultantly this Writ Petition is allowed. Order dated 15.01.2010 on E.A.No.92 of 2009 is set aside. That application is remitted to the executing court for fresh consideration. I make it clear that if for reduced upset price fixed by the executing court there is no bidders then it is open to the executing court to get the service of an Advocate Commissioner if necessary with the assistance of an expert to assess the value of property. THOMAS P.JOSEPH, Judge. cks