IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 WP(C).No. 34104 of 2009(O) --------------------------------------- AGAINST THE ORDER IN EP 56/2008 IN OS.76/2002 of SUB COURT, NEYYATTINKARA . .................... PETITIONER(S): ------------------------- NOORUKANNU MAHISU,THOTTUVILAKATHE PUTHEN VEEDU,VENGANOOR DESOM,VIZHINJAM VILLAGE, REPRESENTED BY THE POWER OF ATTORNEY HOLDER KABEER,S/O.MUHAMMED ABDUL KADAR,KALLUNKKADA VEEDU, VENGANOOR DESOM. BY ADV. MR.R.GOPAN RESPONDENT(S): ---------------------------- 1. NAZARUDHEEN,S/O.NUHUKANNU, M.N.H.HOUSE,PULLOORKONAM, PANATHODE DESOM,VENGANOOR VILLAGE. 2. K.M.ASHIK, VARUVILAKAM,MATHIPPURAM, VIZHINJAM,PIN-695 521. R1 BY ADVS.MR.T.A.UNNIKRISHNAN, MR.K.SATHEESH KUMAR. R2 BY MR.SYAM J SAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) NO.34104/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE DECREE DTD. 28.11.2007 IN OS.76/2002 OF THE SUB COURT, NEYYATTINKARA. P2:_ COPY OF THE APPEAL AS AS. NO.51/2008 FILED NOOHUKANNU NAZARUDHEEN BEFORE THE DISTRICT COURT, THIRUVANANTHAPURAM. P3:- COPY OF THE EP. NO.56/2008 IN OS. 76/2002 OF THE SUB COURT NEYYATTINKARA DTD. 12.6.2008. P4:- COPY OF THE CERTIFICATE DTD. 24.1.2009 ISSUED BY TAHSILDAR , NEYYATTINKARA TALUK. P5:- COPY OF THE OBJECTION FILED BY THE PETITIONER TO THE VALUATION CERTIFICATE OF THE TAHSILDAR IN OS. 76/2002 DTD. 20.8.09. P6:- COPY OF THE ORDER DTD. 20.8.2009 IN EP. 56/2008 IN OS. 76/02 OF THE SUB JEGE, NEYYATTINKARA. P7:- COPY OF THE SALE NOTICE IN EP. 56/2008 IN OS. NO.76/02 ISSUED BY SUB COURT, NEYYATTINKARA. P8;- COPY OF THE PETITION AS EA. 337/2009 IN EP. 56/2008 IN OS. 76/02 BEFORE THE SUB COURT, NEYYATTINKARA DTD. 23.9.2009. P9:- COPY OF THE ORDER DTD. 30.9.2009 IN EA. 337/2009 IN EP. 56/2008 IN OS. 76/02 PASSED BY THE SUB JUDGE, NEYYATTINKARA. P10:- COPY OF THE REPORT OF THE AMIN DTD. 15.10.09 IN EP. 56/2008 IN OS. 76/02. P11:- COPY OF THE STATEMENT IN OS. 76/02 BEFORE THE SUB COURT, NEYYATTINKARA DTD. 30.10.09. P12:- COPY OF THE CHALLAN DTD. 17.1.2008 FOR RS. 5,000/- IN OS. 76/02. P13:- COPY OF THE EA. 439/09 IN EP. 56/09 IN OS. 76/02 OF SUB COURT, NEYYATTINKARA.. TRUE COPY P.A.TO JUDGE tss P. BHAVADASAN, J --------------------------- W.P.(C).No.34104 OF 2009 ----------------------------------- Dated this the 30th day of March, 2010 J U D G M E N T This is a petition filed under Article 227 of Constitution of India, wherein the petitioner assails Ext.P6 order whereby sale was conducted. 2. The petitioner is the defendant in O.S. 76/02, which was a suit for specific performance of an agreement for sale. According to the plaintiff, the defendant entered into a contract for sale of 1.329 cents of land with building for a total consideration of Rs.3,40,000/-. Plaintiff claimed that advance amount of Rs.1,70,000/- was paid and balance amount of Rs.2,00,000/- was to be paid at the time of execution of sale deed. On 2.3.2002 the first defendant obtained an additional sum of Rs.1,00,000/- as part of sale consideration and gave a cheque as security for that amount. Since there was failure on the part of the defendant to execute the sale deed, specific performance W.P.(c) No.34104/09 2 was claimed and in the alternative sought return of advance amount paid by him. 3. By the judgment and decree dated 28.11.2007 the suit was decreed and the plaintiff was allowed to realise the amount of Rs.1,70,000/- with 12% interest from the date of the agreement till realisation. The judgment and decree was challenged in A.S.51/08 before the District Court, Thiruvananthapuram. Copy of the memorandum of appeal is produced and marked as Ext.P2. In the meanwhile, execution of decree was taken out by the first respondent by filing E.P.56/08, copy of which is produced and marked as Ext.P3. 3. The Tahsildar, Neyyattinkara produced valuation certificate assessing valuation of the plaint schedule property as Rs.2,50,000/- and the building as Rs.80,000/-., copy of which is produced and marked as Ext.P4. On 20.8.2009 the respondent filed objection to the valuation certificate stating that the value assessed by the Tahsildar is very low, the land will worth more than W.P.(c) No.34104/09 3 Rs.5,00,000/- per cent and the building will worth more than Rs.2,00,000/-, copy of which is produced and marked as Ext.P5. 4. It is pointed out by the petitioner herein that without considering the objections of the petitioner, the court below passed an order settling the sale proclamation. Copy of the order dated 20.8.09 is produced as Ext.P6. Notice was issued under Order 21 Rule 66 of C.P.C. whereby the court fixed the upset price as Rs.2,50,000/- and sale was scheduled to be held on 30.09.2009. Copy of the sale notice is produced marked as Ext.P7. On 23.9.2009 claim petition was filed as E.A.337/009 in E.P.56/08. It is pointed out that he has already paid Rs.1,45,000/- towards decree amount and the balance shall be paid in monthly installments of Rs.10,000/-. Therefore he prayed for adjournment of the sale dated 30.09.2009. On 30.09.2009 the executing court took up E.A.337/09 and posted it for hearing on 5.12.2009. Copy of the order is produced as Ext.P9. 5. On 30.09.2009 Amin conducted the auction W.P.(c) No.34104/09 4 sale of the plaint schedule property. Property was sold for a sum of Rs.2,50,500/-. On 15.10.2009 Amin filed necessary report before the court. In the meanwhile, on 30.10.2009 the first respondent filed a statement before the court, which showed an amount of Rs.5000/- had been paid towards the decree debt. The first respondent had omitted to account Rs.5,000/- paid by the petitioner on 17.1.2008. Thereafter on 21.11.2009 E.A.439/09 in E.P.56/08 for setting aside sale dated 30.09.2009, copy of which is produced as Ext.P13. Grievance of the petitioner is that without considering his claim for adjourning the sale to a future date, court conduct the same on 30.09.2009. According to the petitioner, the court below should have considered the petition before conducting the sale. 6. At the time of admission of the writ petition an interim order was passed not to confirm the sale until further orders from this court. 7. It is pointed out that he has paid about W.P.(c) No.34104/09 5 Rs.1,45,000/- towards decree amount and sought time for payment of the balance amount in monthly installments. There is no justification on the part of the lower court in declining to grant the said relief and proceed to conduct the sale on 30.9.2009 itself. After conducting the sale no purpose will be served in keeping his petition pending. 8. The present prayer on behalf of the petitioner is to allow him to pay balance decree amount in installments of Rs.10,000/- per month. 9. It has to be noticed that auction purchaser has deposited the sale amount in court. True, the sale itself is not confirmed and in the light of the facts stated above, it is just and proper to set aside the sale and no particular prejudice is caused to the auction purchaser. He is entitled to an amount as contemplated under Order XXI Rule 89. 10. Considering the willingness expressed by the petitioner to deposit the balance amount in monthly installments, it is felt that it is only just and proper to set aside the sale. Therefore the sale dated 30.9.2009 will W.P.(c) No.34104/09 6 stand set aside if the petitioner deposits 5% of the sale amount deposited by the auction purchaser before that court. The petitioner shall pay the decree debt in monthly instalments of Rs.10,000/- subject to the result of the appeal pending before the court. Auction purchaser would be entitled to withdraw the amount deposited by him, if any, also 5% of the amount deposited by the judgment debtor within two weeks of re-opening of the courts after summer vacation. The first instalment of Rs.10,000/- shall be paid on or before 18.5.2010 and the subsequent instalments on or before the 18th of the succeeding months. If any of the instalments is defaulted, the execution proceedings shall continue and the decree holder can realise the balance amount in a lump sum. This writ petition is disposed of accordingly. P. BHAVADASAN, JUDGE. Sou.