IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 WP(C).No. 9488 of 2008(D) ------------------------- {O.S.NO.34 OF 1996 OF THE SUB COURT, THODUPUZHA} PETITIONER(S): --------------- N.SIVARAMAN, S/O.NARAYANAN, VADAKKANAL HOUSE, VADAKKUMMURI, THODUPUZHA VILLAGE. BY ADV. SRI.JOSE JOSEPH ARAYAKUNNEL RESPONDENT(S): --------------- GOPALAKRISHNAN, S/O.AYYAPPAN, AYKARAKUNNEL HOUSE, VANNAPURAM KARA, VANNAPURAM VILLAGE, THODUPUZHA TALUK. ADV. SRI.KAPPILLIL ANILKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON 29/01/2010 DELIVERED THE FOLLOWING: WP(C).No. 9488 of 2008 :: 2 :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: PHOTOCOPY OF THE ORDER IN EA NO.40/02 DATED 2.8.03. EXT.P2: PHOTOCOPY OF THE JUDGMENT DATED 2.12.03 IN AS 4/03. EXT.P3: PHOTOCOPY OF THE JUDGMENT IN FAO NO.133/03 DATED 2.12.03. EXT.P4: PHOTOCOPY OF THE B-DIARY OF THE PROCEEDINGS IN EP NO.68/05. EXT.P5: PHOTOCOPY OF THE JUDGMENT DATED 11.1.08 WPC 1509/08. EXT.P6: PHOTOCOPY OF THE JUDGMENT IN WPC 6014/08(N) DATED 21.2.08. EXT.P7: PHOTOCOPY OF THE IMPUGNED ORDER OF THE LEARNED SUB JUDGE DATED 4.3.08. EXT.P8: PHOTOCOPY OF THE COMMISSION REPORT DATED 28.2.08, FILED BY ADV.BINDUMOL JOSEPH. EXT.P9: PHOTOCOPY OF THE DEPOSITION OF DW1 IN EP NO.68/05 IN OS NO.34/96. EXT.P10: PHOTOCOPY OF THE COMMISSION REPORT DATED 13.12.02 FILED BY ADV. SEENA JOHNSON. EXT.P11: PHOTOCOPY OF THE AGREEMENT DATED 25.2.08 EXECUTED BETWEEN DW1 AND SRI.K.R.SHAJI. EXT.P12: PHOTOCOPY OF THE SALE DEED NO.178/07. WP(C).No. 9488 of 2008 :: 3 :: EXT.P13: PHOTOCOPY OF THE SALE DEED NO.3909/07. EXT.P14: PHOTOCOPY OF THE SALE DEED NO.3910/07. EXT.P15: PHOTOCOPY OF THE SALE DEED NO.4703/07. EXT.P16: TRUE COPY OF THE SALE AGREEMENT DATED 11.04.2005 EXECUTED BY SRI.PAREED AND SHAJI IN RESPECT OF 10 CENTS OF PROPERTY OF PAREED. EXT.P17: PHOTOCOPY OF THE TARRIFF-RATE SCHEDULE. RESPONDENTS' EXHIBITS: NIL //true PHOTOCOPY// P.S. To Judge SK/- S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.9488 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of January, 2010 JUDGMENT The Writ Petition is filed seeking mainly the following reliefs: i. To quash Ext.P7 order dated 4.3.08 in E.P.No.68/05 in O.S.No.34/96 on the files of the Sub Court, Thodupuzha by issuing a writ of certiorari or any other appropriate writ or order. ii. To fix the upset price of the property of the judgment debtor in E.P. on the basis of the market value of the property as suggested by the decree holder in the E.P. 2. An order passed by the execution court fixing the upset price in settling the proclamation over the property of the judgment debtor for its sale to realise the decree debt in O.S.No.34 of 1996 on the file of the Sub Court, Thodupuzha is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution. 3. The execution proceedings over the decree passed in O.S.No.34 of 1996 has a long chequered career. Decree being W.P.C.No.9488/08 - 2 - executed is one passed in a suit for money allowing the petitioner/decree holder to recover the principal sum of Rs.4,85,000/- with interest at the rate of 18% and cost of Rs.44,127.50. Suit was decreed on 31.3.1999 after contest. In execution of that decree, petitioner/decree holder filed E.P.No.25 of 2000 and in the proceedings thereof 50 cents of property belonging to the respondent/judgment debtor was brought to sale and purchased by the decree holder in court auction on 21.12.2001 for a sale price of Rs.10 lakhs. Sale was confirmed on 9.4.2002 and, later, sale certificate was issued to the auction purchaser decree holder. The respondent/judgment debtor had moved an application for setting aside the sale alleging fraud and material irregularity in conducting and publishing the sale. That application, E.A.No.40 of 2002, after enquiry was dismissed by the execution court on 2.8.2003. P1 is the copy of that order. Against P1 order, judgment debtor preferred F.A.O.No.133 of 2003 before this court. As against the judgment and decree passed in the suit, he had previously filed an appeal as A.S.No.4 of 2003 before this court. Both the appeals were heard together, but, disposed under separate judgments. P2 is the judgment rendered in the appeal against the decree by which a W.P.C.No.9488/08 - 3 - modification in the decree of the court below was made to the extent of reducing the interest from 18% to 9% per annum. In view of the modification of the decree as indicated, the appeal preferred against P1 order, F.A.O.No.133 of 2003, was allowed setting aside the sale. P3 is the judgment dated 2.12.2003 rendered in the F.A.O. wherein a direction was also given to the execution court to complete the execution proceedings within two months. On such remission, the execution court settled proclamation for sale of 25 cents of property of the judgment debtor fixing an upset price of Rs.8,85,000/-. However, later, the execution petition, in which the proclamation was settled as above, E.P.No.25 of 2000, was dismissed for default of the decree holder in not taking proper steps for publication of the proclamation as directed. The decree holder, thereafter, filed a fresh execution petition as E.P.No.68 of 2005 on 21.11.2005. Though the decree holder had applied for proceeding against 50 cents of property of the judgment debtor for proclamation and sale, the execution court directed to proceed for sale of only 25 cents. The judgment debtor did not file the objections in time and the court then ordered for settling of the proclamation for sale of 25 cents fixing an upset price of Rs.5 lakhs. The W.P.C.No.9488/08 - 4 - judgment debtor, thereupon, filed a writ petition as W.P.C.No.1509 of 2008 challenging the order of the execution court and that writ petition was disposed vide P5 judgment dated 11.1.2008 directing the execution court to provide three weeks further time to file objection to the draft settlement for proclamation produced by the decree holder. The execution court proceeded with the execution after considering the objection filed by the judgment debtor. Yet another writ petition was filed by the judgment debtor as W.P.C.No.6014 of 2008 challenging the upset price fixed over the property for sale. That writ petition was dismissed vide P6 judgment dated 21.2.2008. This court observing that the judgment debtor is 'attempting' to raise all possible technical objections to stall the execution proceedings, directed the court below to conduct a fresh enquiry regarding the upset price to be fixed for the property after permitting both sides to adduce evidence. A time limit of two weeks was also fixed for completing that exercise and a further direction was issued that the property had to be sold, at any rate, before the court closed on summer holidays. Thereafter, both parties let in evidence as to the value of 25 cents of property to be sold after settling proclamation. To assist the court in fixing the upset W.P.C.No.9488/08 - 5 - price of that property, an advocate commissioner was appointed to conduct a local inspection and ascertain the value of the property. P8 is the copy of the report filed by the advocate commissioner deputed for ascertaining the value of the property to fix its upset price. The execution court, thereafter, fixed an upset price of Rs.36 lakhs for the 25 cents of property proceeded for sale by order dated 4.3.2008. P7 is the copy of that order. Previously, in E.P.No.25 of 2000, in which sale was conducted but subsequently set aside, an advocate commissioner had been deputed to fix the value of the property, and the copy of the report prepared by that commissioner is produced and exhibited as P10. The decree holder in the present writ petition impeaches P7 order of the court below fixing the upset price of Rs.36 lakhs over 25 cents of land of the judgment debtor for settling proclamation and publication for sale of that property. This court has previously, after hearing both sides, disposed the writ petition by judgment dated 11.4.2008. Taking note of the submissions made at the time of hearing of the writ petition, this court has expressed the view “that the best method to avoid litigation after litigation is to sell a portion of the property whereby one will be able to discharge the decree debt to the W.P.C.No.9488/08 - 6 - decree holder”. Expressing that view an opportunity was extended to the judgment debtor to discharge the decree debt in private sale over a portion of the property moving an application before the execution court furnishing such particulars as are necessary to obtain permission for such sale. Judgment debtor was also directed to furnish further information before the court as to agreement of sale, if any, entered with any purchaser after obtaining such permission and also to deposit the amount received as advance before the court or paid to the decree holder. The writ petition was disposed after extending an opportunity to the judgment debtor to discharge the decree debt by private sale subject to compliance of the directions given, reserving his right for review of the order (judgment) for further directions, in case such private sale failed to materialize. The decree holder thereafter moved a review petition that no effective steps have been taken by the judgment debtor for private sale of the property, but, the directions given by the court thereunder are capitalised to protract the execution proceedings and prevent him from enjoying the fruits of the decree. The review petition was allowed and, thus, the writ petition has again come up for hearing. W.P.C.No.9488/08 - 7 - 4. I heard the counsel on both sides. Inviting my attention to the inordinate delay in the completion of the execution proceedings which is attributed to the dilatory tactics of the judgment debtor in resisting the execution of the decree raising untenable contentions at various stages thereof even after being extended with an opportunity by this court to discharge the decree debt by private sale of a portion of the property attached and proceeded for sale, which was taken advantage only to further delay the proceedings, the learned counsel for the decree holder submitted that the execution court too without application of mind has misconstrued the directions of this court in fixing the upset price of the property placing reliance on materials which have no relevance in such fixation with the result a grossly exaggerated sum having no relation to the value of the property to be sold is fixed for being shown in the proclamation to be settled and published for sale. The execution court has fixed Rs.36 lakhs as the upset price for the sale of 25 cents out of the 50 cents of the property of the judgment debtor which alone was directed to be sold by this court at the first instance and the rest of the property only if that is found to be insufficient to satisfy the decree debt, and the W.P.C.No.9488/08 - 8 - upset price so fixed in respect of a property situate in an interior part of the village is too excessive and has no relation to the market value of the property and any proclamation settled and published for sale of the property with such price would be practically meaningless as no bidder will come forward even to participate in the auction for such sale is the grievance of the counsel. On the other hand, learned counsel for the judgment debtor contended the upset price has been fixed by the court on the basis of a report by an advocate commissioner deputed to assess the value of the property and the other materials tendered in the enquiry conducted over that question and that being so, no interference with such fixation of the upset price directed to be shown in the proclamation for sale of the property is liable to be interfered with in exercise of the visitorial jurisdiction vested with this court. 5. I have examined the submissions made by the counsel on both sides with reference to the exhibits produced, more particularly, the directions given by this court in the judgments rendered in the previous writ petitions moved at the instance of both parties. At the outset, it has to be pointed out that the sale conducted over 50 cents of property of the W.P.C.No.9488/08 - 9 - judgment debtor was set aside for the sole reason that in the appeal preferred against the decree by the judgment debtor this court has shown the indulgence of reducing the interest awarded over the principal sum from 18% to 9% per annum. Though a specific time limit was fixed by this court while setting aside such sale under its judgment dated 2.12.2003, it is seen, the execution proceedings continue at a lethargic pace and even proclamation has not been settled till date to proceed with the sale of the property to realise the decree debt. P4 is the B Diary of the execution proceedings in E.P.No.68 of 2005, the fresh petition filed by the decree holder after the dismissal of the previous execution petition, E.P.No.25 of 2000, which gives a graphic picture as to what all transpired before the execution court from 21.11.2005 onwards. In P3 judgment rendered in the appeal filed by the judgment debtor against the order dismissing his application for setting aside the previous sale over the property this court has directed the execution court to proceed with sale over a portion of the attached property accepting the submissions made by the judgment debtor that a portion of the property would be sufficient to discharge the decree debt. Taking note of the direction, the execution court has proceeded for sale W.P.C.No.9488/08 - 10 - of 25 cents out of the 50 cents attached, which, in fact, had been earlier brought to sale, but, later, set aside under P3 judgment. It is seen from P4 that the execution court, after hearing both sides, negatived the objections raised by the judgment debtor challenging the maintainability of the petition and posted it for proclamation statement to 12.6.2007 directing the decree holder to limit the sale to the western 25 cents in the attached property of 50 cents. The judgment debtor preferred a writ petition as W.P.C.No.17015 of 2007 and that was disposed by this court by judgment dated 5.6.2007 approving the orders of the execution court. In response to the notice ordered under Order 21 Rule 66 of the Code of Civil Procedure for settling the proclamation and publication of sale, the judgment debtor sought for time to file objections more than once. The decree holder thereupon filed a writ petition as W.P.C.No.35431 of 2007 in which this court directed completion of the execution proceedings within two months. In the light of the direction given by this court under the judgment, the execution court expedited the proceedings and ordered for settling the proclamation fixing a sum of Rs.5 lakhs as the upset price for sale of the property. The judgment debtor challenged that order contending that he had been denied W.P.C.No.9488/08 - 11 - opportunity to challenge the settlement for proclamation by filing writ petition, W.P.C.No.1509 of 2008. This court disposed the writ petition setting aside the order of the execution court directing it to provide three weeks time to the judgment debtor to file objections and then to proceed with the matter. P5 is the copy of that judgment. The judgment debtor, thereafter, filed objections contending among other grounds that the property proposed to be sold, i.e., western 25 cents out of 50 cents has a value of 50 lakhs and it forms part of a property mortgaged to a bank. The decree holder produced a certificate from the bank apart from other documents to proceed with the steps for settling proclamation. After hearing both sides, fixing an upset price of Rs.5 lakhs, the court ordered for proclamation of the property subject to the subsisting liability under the revenue recovery proceedings as evidenced from the certificate produced. The value suggested by the decree holder and also the judgment debtor was also directed to be incorporated in the proclamation schedule. That order was passed by the execution court on 12.2.2008. The judgment debtor challenged that order by filing a writ petition as W.P.C.No.6014 of 2008. That writ petition was disposed setting aside the order of the execution court directing W.P.C.No.9488/08 - 12 - it to conduct a fresh enquiry regarding the upset price to be fixed for the property to be sold. P6 is the copy of that judgment. In P6 judgment this court directed the execution court to complete the enquiry within two weeks and complete the sale of the property, before the closing of the courts for summer holidays. An application previously moved by the judgment debtor for ascertaining the value of the property by appointing an advocate commissioner, E.A.No.46 of 2008, which had been dismissed earlier, was allowed by the court by order dated 27.2.2008. After a report was filed by the advocate commissioner, in the enquiry conducted by the court over the fixation of the upset price for the property, the decree holder exhibited A1 to A3, and the judgment debtor examined one witness as D.W.1 apart from exhibiting B1 to B3. On the materials so placed, the execution court fixed the upset price over the property of 25 cents at Rs.36 lakhs and settled proclamation for sale of that property subject to the liability under the revenue recovery proceedings over that property. Market value of the property suggested by the decree holder and also the judgment debtor was also directed to be incorporated in the proclamation schedule. That order (P7) is under challenge in the writ petition. W.P.C.No.9488/08 - 13 - 6. In the counter affidavit filed, the judgment debtor relying on a number of decisions by this court and also the apex court canvasses that exercise of supervisory jurisdiction vested with this court is very limited and that being so, interference with P7 order fixing the upset price for setting the proclamation and publication of sale of the property has to be avoided. What had transpired in the execution proceedings from time to time demonstrate that the judgment debtor is stalling the sale of the property at every stage to defeat and deny the decree holder from enjoying the fruits of a validly obtained decree. True, the judgment debtor has every right to put forward the legal defences available to him when a sale is proceeded against his property attached for satisfaction of the decree debt. But, where the objections raised to resist the execution are found to be meritless and if the execution court has entered into a patently erroneous decision overlooking of legal principles applicable in fixing upset price, which if not corrected is likely to cause grave injustice, necessarily, such an order is liable to be interfered with in exercise of the visitorial jurisdiction vested with this court. First of all, in the given facts of the case, it has to be pointed out in P6 judgment dated 21.2.2008 this court has not interfered W.P.C.No.9488/08 - 14 - with the order passed by the execution court dismissing the application for appointment of an advocate commission moved by the judgment debtor to fix the value of the property nor directed that court to seek the assistance of a commission for fixation of the upset price. Directing the execution court to defer the sale posted on 10.3.2008, this court in P6 judgment has asked the execution court to conduct a fresh enquiry regarding the upset price to be fixed for the property. How the enquiry is to be conducted has also been spelt out in the judgment by directing the execution court to permit both sides to adduce evidence, if any, and then on hearing them, the court was directed to fix the upset price in the proclamation showing at the same time the value suggested by the judgment debtor. A specific time limit was fixed directing the court to complete the exercise within a period of two weeks from the date of pronouncement of the judgment, commanding that court to complete P6 sale of the property before the closing of the court for summer holidays. Though the judgment debtor in that writ petition had challenged the order passed in E.A.No.46/08, application for appointing commission by the execution court, evidently, while disposing the petition by P6 judgment, that W.P.C.No.9488/08 - 15 - challenge was not heeded to limiting the scope of enquiry permitting the parties to lead evidence, if any, for the purpose of fixation of the upset price. Such permission granted to lead evidence by the parties could not have been taken advantage by the judgment debtor as if there was a direction to reconsider the commission application which had been dismissed by the execution court. The execution court went wrong in reversing the order of dismissal of the commission application by deputing the commission to ascertain the value of the property for the purpose of fixing the upset price. When this court has fixed a time limit of two weeks from the date of the judgment for completion of the exercise of fixing the upset price without adverting to the challenge raised to the dismissal of the commission application which had been canvassed by the judgment debtor in his writ petition, by giving a specific direction as to how the enquiry is conducted, there was no question of sending out a fresh commission for the purpose of ascertaining the value of the property to fix the upset price. So much so, the report collected by the advocate commissioner and the evidence thereof are liable to be eschewed from consideration in fixing the upset price of the property. In this context, it has to be noted W.P.C.No.9488/08 - 16 - that fixation of upset price is only for the purpose of facilitating the conduct of the sale and not for safeguarding the interest of the judgment debtor. The object of fixing the lowest sum for the property to be auctioned is for the purpose of starting point of the bidding. No doubt, it has some relation with the price of the property which is intended to be sold in auction. The second proviso inserted to sub-rule (2) of Rule 66 of Order 21 by Act 104 of 1976 of the Code of Civil Procedure clearly spells out that the court is not required to enter into the proclamation of sale its own estimate of the value of the property. The second proviso to the Rule reads thus: “Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given by either or both of the parties.” 7. The above rule relieves the court from the burden of vouchsafing the accuracy of the value shown in the proclamation. The bidder in the auction is left to his judgment as regards the value of the property from the estimate given by the judgment debtor and such other enquiry at his instance. W.P.C.No.9488/08 - 17 - However, in the given facts of the case, where this court in the decisions rendered in the previous writ petitions had directed for fixation of the upset price by the court after taking evidence of the parties, if any, irrespective of the second proviso, the execution court was bound to fix the upset price and include it in the proclamation for sale with that of the value suggested by the decree holder and the judgment debtor. 8. In P8 commission report it is seen that other than making a reference as to how far the judgment debtor's property proceeded for proclamation and sale is away from the property covered by an agreement of sale (P11) and also a sale deed which have been produced