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Judgment
The prayer in this Original Petition (Civil) filed under the enabling provisions contained in Art.227 of the Constitution of India is as follows:
To set aside Ext.P-4 order dismissing the E.A.133/2017 in E.P.87/2016 in OS 251/2014 and direct the Execution Court to fix the value of the
property of the respondents on the basis of the fair value fixed by the Government or on the basis of any other relevant materials and sell portion of
the property in Sy Nos.25 & 26 of the Mavelikkara Village for satisfying the decree in O.S.No. 251/2014.
Heard Sri.A.Shafeek, learned counsel appearing for the petitioner. In the nature of the order that is proposed to be passed in this petition, notice
to the respondent will stand dispensed with.
The petitioner is the 1st decree holder in O.S.No. 251/2014 on the file of the Munsiff''s Court, Mavelikkara and the 2nd decree holder therein
is the wife of the petitioner. The petitioner along with his wife had filed abovesaid suit for realisation of Rs.4.5 lakhs with accrued interest thereon
from the respondents. On 12.4.2016, the trial court had decreed the suit permitting the petitioner to recover an amount of Rs.4.5 lakhs along with
interest thereon @ 12% p.a. from the date of filing of the suit to the date of the decree and thereafter, interest @ 6% p.a. from the date of decree
to the date of realization. Thereafter, the petitioner had filed E.P. for realization of a total amount of Rs.6,29,489/- from the respondents. The
execution court directed the petitioner to produce valuation certificate with respect to the judgment debtors'' property for realization of decree
amount by sale of the property. As the Village Officer refused to issue valuation certificate, the petitioner filed E.A.No.133/2017 in the E.P., inter
alia praying for the sale of the property, on the basis of fair value fixed by the Government on 8.11.2017. On 8.11.2017, the court has dismissed
the E.A.133/2017 as per Ext.P-4 holding that Order XXI Rule 66 C.P.C. does not provide that the court shall fix the value of the property in the
absence of revenue assessment. It is challenging the said Ext.P-4 order that the petitioner has filed the present Original Petition (Civil). Second
proviso to Order XXI Rule 66(2) of the C.P.C. stipulates as follows:
Rule 66: Proclamation of sales by public auction.
xxx xxx xxx
1...
(2) ....
Provided ......
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.
In the light of the abovesaid proviso, the matter in Ext.P-2 E.A. is remitted to the trial court for consideration regarding the contention of the
petitioner based on the second proviso to Order XXI sub rule 2 of Rule 66. The impugned order will stand modified to the above extent. For
facilitating such reconsideration, the impugned Ext.P-4 order will set aside and the E.A. will stand remitted to the trial court for fresh consideration.
The court below after hearing both sides will pass necessary orders on Ext.P-2 E.A. without much delay, preferably within a period of two weeks
from the date of production of a certified copy of this judgment. The petitioner will produce a certified copy of this judgment before the court
below concerned for necessary information.
With these observations and directions, the aforecaptioned Original Petition (Civil) stands finally disposed of.