Moideenkutty v. Manappuram Asset.Finance Ltd, Rep. By Its M.D.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA THURSDAY, THE 16TH DAY OF JULY 2015/25TH ASHADHA, 1937 OP(C).No. 2120 of 2014 (O) --------------------------- EP NO. 54/2014 IN OS.NO. 160/2007 OF SUB COURT, OTTAPPALAM ---------------------- PETITIONER(S) :
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1. MOIDEENKUTTY S/O. P.K. KUNNAHAMMED, AGED 32 YEARS PULIKKAL HOUSE, KODUMUNDA P.O.
PATTAMBI, OTTAPALAM TALUK, PALAKKAD DISTRICT.
2. P. CHEKAMMU, S/O. P. MUHAMMED, AGED 45 YEARS PULIKKAL HOUSE, KODUMUNDA P.O.
PATTAMBI, OTTAPALAM TALUK, PALAKKAD DISTRICT.
3. AYSHAKUTTY, W/O. P.K. KUNNAHAMMED, AGED 71 YEARS PULIKKAL HOUSE, KODUMUNDA P.O.
PATTAMBI, OTTAPALAM TALUK, PALAKKAD DISTRICT.
BY ADV. SRI.K.RAVI (PARIYARATH) RESPONDENT :
------------------------ THE MANAPPURAM ASSET. FINANCE LTD., REP. BY ITS MANAGING DIRECTOR MRS. JYOTHIPRASANNAN, W/O. P.D. PRASANNAN PUZHAKEKADAVIL HOUSE, CIVIL LINES ROAD THRISSUR-680 001.
BY ADVS. SRI.V.B.UNNIRAJ SMT.R.S.GEETHA SMT.P.ANITHA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mn ...2/-
OP(C).No. 2120 of 2014 (O) --------------------------------------- APPENDIX PETITIONERS' EXHIBITS :
------------------------------------- EXT. P1.
TRUE COPY OF THE EXECUTION PETITION PREFERRED AT THE INSTANCE OF THE RESPONDENT HEREIN AS E.P. NO. 54/2014 IN O.S. NO. 160/07 ON THE FILE OF THE SUB COURT, OTTAPALAM DATED 21-1-14.
EXT. P2.
TRUE COPY OF THE OBJECTIONS PREFERRED AT THE INSTANCE OF THE PETITIONERS HEREIN IN E.P. NO. 54/2014 IN O.S. NO. 160/07 ON THE FILE OF THE SUB COURT, OTTAPALAM DATED 21-6-2014. EXT. P3.
TRUE COPY OF THE SALE PROCLAMATION DRAWN IN E.P. NO. 54/2014 IN O.S. NO. 160/07 ON THE FILE OF THE SUB COURT, OTTAPALAM DATED 5-7-14.
EXT. P4.
TRUE COPY OF THE COURT PROCEEDINGS IN E.P. NO. 54/2014 IN O.S. NO. 160/07 ON THE FILE OF THE SUB COURT, OTTAPALAM DATED 6-8-14.
RESPONDENT(S)' EXHIBITS : NIL ------------------------------------------------------------- //TRUE COPY// P.A. TO JUDGE Mn
B. KEMAL PASHA, J.
````````````````````````````````````````````````````````````` O.P.(C) No.2120 of 2014 ````````````````````````````````````````````````````````````` Dated this the 16th day of July, 2015
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~ Heard learned counsel for the petitioner and learned counsel for the respondent.
2.
A charged decree has been passed for recovery of money based on an agreement for sale supported by a pro note. It seems that precisely, it was a suit for money. At the same time, when the decree was passed, it was passed as a charged decree. It seems that 30 cents of property was scheduled in the decree. The decree amount comes around `12 lakhs.
3.
According to the learned counsel for the petitioner, the sale of the entire property is not required to
OPC.2120/2014 : 2 :
meet the decree debt.
4.
Per contra, the learned counsel for the respondent has contended that the property is situated in a remote village and it will not fetch more than ₹10 lakhs. It seems that without having a proper discussion, the court below has passed an order on 03.07.2014 through Ext.P4 by taking the view that the decree being a charged decree, the entire property has to be put to sale.
5. The court below has lost sight of the decision in Kuruvilla v. Corporation Bank [2008 (1) KLT 604], wherein it was clearly held that Rule 66(2)(a) of Order XXI CPC will apply even in the case of a charged decree. It is for the execution court to apply its mind and decide whether it is necessary to bring the whole property to sale for the recovery of the decree debt. The order passed by the court below on 03.07.2014 is liable to be set aside. In the result, this O.P.(C) is allowed. The order passed by the court below on 03.07.2014 is set aside. The court
OPC.2120/2014 : 3 :
below shall consider the counter filed by the petitioner herein and hear both sides and pass appropriate orders in accordance with law, within a period of two months from the date of receipt of a copy of this judgment.
Sd/- (B.KEMAL PASHA, JUDGE) aks/16/07 // True Copy // PA to Judge