~ ~ ~ ~ ~ ~ ~ ~ ~ The decree-holder in O.S.No.106/1998 of the Subordinate Judge's Court, Irinjalakuda, whose E.P.No.284/2003 stands dismissed through order dated 11.02.2011, has come up in revision. 2. O.S.No.106/1998 is a suit for money, which was decreed in favour of the plaintiffs. Before anything could be realised, the 1st decree-holder died. The 2nd decree-holder is the present 1st petitioner, who is the wife of the 1st decree- holder. She is none other than the direct sister of the judgment-debtor. The decree was obtained on 22.03.2003. The decree has become final. The judgment-debtor has got half undivided share in a total extent of 8.5 cents of property. The said half share of the judgment-debtor has been attached during the trial stage and the attachment still continues. The said property was attempted to be sold in execution of the decree.
3. Even though the judgment-debtor has not strongly resisted the execution, for reasons beyond the control of the decree-holders, the sale could not take place. It seems that the property has got a lesser width and a small road frontage. The property has to be divided by the means and bounds into two shares and practically one half share will come around 4.25 cents. When the sale was attempted, it seems that the court below had at first fixed an upset price of ₹12 lakhs for the undivided share of the judgment-debtor sought to be sold. When it was posted for sale, there was nobody to purchase it and thereby the attempt failed. The decree-holders were clamouring before the court below that the upset price was too high and there would not be anybody to purchase the property for such a huge amount. As the first attempt failed, the court below was constrained to re-fix the upset price and the court below, through Ext.P3, fixed the upset price at ₹6 lakhs per cent and at the same time, the extent of the property to be sold was decreased to 3 cents.
4. Immediately, the 2nd decree-holder filed Ext.P4 statement before the court below stating that the lie of the property is just like a road having a width of 6.9 metres and a length of 42 metres and more over, there is a subsisting liability to the tune of ₹47,500/- also over the property. An extent of 3 cents of the property cannot be separated from the property and if the proposed sale is confined to 3 cents, there would not be anybody to be a bidder in the auction sale. Without caring the contentions of the 2nd decree- holder, the court below proceeded with the sale proceedings. On the date on which the matter was posted for sale, there were no bidders at all. The 2nd decree-holder was also not ready and willing to purchase the said 3 cents of property as it cannot be practically put to any use at all. The court below has chosen to dismiss the E.P. through the impugned order. The order of attachment was also lifted. The petitioners have sought for the restoration of the order of attachment and the same was restored by this Court.
5. Heard the learned counsel for the petitioners/decree-holders Sri.T.N.Manoj and the learned counsel for the judgment-debtors.
6. The learned counsel for the petitioners has pointed out that the court below has lost sight of the amended provisions contained in Order XXI Rule 66(2) of the Code of Civil Procedure, 1908 and that may be the reason why the court below had taken an attitude for fixing an upset price and compelling the decree-holders to see that the property is sold for such an upset price. On hearing either side, it has come out that the attempt of the court below was nothing but to see that the decree-holders should purchase the property for an amount fixed by the court below. It virtually means that the decree-holders should purchase the property for a price as decided by the judgment-debtor, for which price even he could not sell the property. It is not the duty of the decree-holders to see that the property of the judgment-debtor is sold for a higher amount than normally available as consideration to such a piece of land. It seems that through the impugned order a situation has been created in such a way that it is the duty of the decree-holders to see that the property of the judgment- debtor is sold for its correct market value or for a higher amount. Still, the judgment-debtor is not ready to pay the amount.
7. This Court had made attempts to get the matter settled as the 2nd decree-holder is none other than the sister of the judgment-debtor, in order to keep their relationship in tact; but, all such attempts failed. Presently, the learned counsel for the judgment-debtor submits that the judgment- debtor has filed an affidavit affirming that the property can be sold out within six months and he would pay the decree amount to the decree-holders. Such a belated wisdom cannot be appreciated. Even though the decree had become final on 02.03.2003, so far no steps have been taken by the judgment-debtor to sell the property and to clear the liability. I do not find that the contents of the affidavit allegedly filed is part of an earnest effort from the part of the judgment-debtor to see that the decree is discharged. Matters being so, the said offer from the part of the judgment-debtor cannot be accepted.
8. It seems that the court below has lost sight of the provisions contained in Order XXI Rule 66(2) of the Code. The said provision has to be applied in letter and spirit in a circumstance like the present one. When two attempts were made, there were nobody to purchase the property. In the second attempt, even though the upset price was decreased by the court below to ₹6 lakhs per cent, the court below had simultaneously decreased the extent of property to be sold to 3 cents. The said acts seem to be per se devoid of even commonsense. By considering the lie of the property, even on exercising commonsense, it could have been seen that there would not be anybody to purchase such a property if the extent is only 3 cents. Even in that case that upset price seems to be high. In such a circumstance, the court below ought to have shown the amount proposed by the decree- holders and the amount stipulated by the judgment-debtor in the proclamation and ordered sale. Matters being so, the impugned order is only to be set aside, and I do so.
In the result, this Original Petition (Civil) is allowed and Ext.P4 is set aside. The E.P. is revived and restored. The court below is directed to proclaim the sale of the property by including the consideration offered by the decree-holders, as well as the consideration, if any, shown by the judgment-debtor in the proclamation. The proclamation shall be settled in such a manner as contemplated under Order XXI Rule 66(2) of the Code and sale shall be ordered within the statutory period. In fact, the court below is not expected to fix an upset price at all. In the peculiar circumstances of this case, for protecting the interest of the judgment-debtor, the court below may fix the amount to be paid through the decree as upset price, and the half oodukur right of the judgment-debtor over the 8.5 cents of property as such should be put for sale. The parties shall appear before the court below on 04.11.2014.
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(B.KEMAL PASHA, JUDGE) aks/07/10 // True Copy // PA to Judge