IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE: NELLORE

Wednesday, this the 1st day of May, 2024.

Present:- Sri G. KABARDHI

I Additional District Judge, Nellore.

E.P.No.643/2023 O.S.No.48/2017

This petition coming on 16.04.2024 before me for final hearing in the presence of Sri B. Naresh Kumar Reddy, Advocate for the Decree Holder and of Sri P. Sreenivasa Rao, Advocate for the Judgment Debtor, upon hearing and having stood over for consideration till this day, this Court delivered the following:

O R D E R

This is an Execution petition filed against the sole Judgment Debtor under Order XXI Rule 66 and 64 of Code of Civil Procedure, 1908, for realization of E.P. amount.

2. The averments of the affidavit appended to the petition is that the E.P. schedule mentioned properties were attached in I.A.No.220/2017 in O.S.No.48/2017 and subsequently, the same was made absolute on 15.02.2023. Even after passing of the Decree, the Judgment Debtor has not chosen to pay the decreetal amount in spite of repeated demands made by him. Hence, prays to issue notice to Judgment Debtor under Order XXI Rule 66 C.P.C and thereby the E.P. schedule mentioned properties be brought to sale in auction in public court and deposit the sale proceeds into Court for recovery of E.P amount along with subsequent interest and costs.

3. Counter filed by the Judgment Debtor stating that the Judgment Debtor is not the absolute owner of the suit schedule property. The Judgment Debtor is the joint owner of the schedule property along with other sharers. The schedule property is not yet partitioned in between the sharers as stated by the Decree Holder. The schedule property is not correct. The Decree Holder shown wrong survey number. The value of the property is rapidly increased in the said period between 2017 to 2023 and the market value of item No.1 is more than one Crore. Item No.2 of the schedule property is more than Rs.50,00,000/-, Item No.3 of the schedule property is more than Rs.50,00,000/-, Item No.4 of the schedule property is more than Rs.80,00,000/- and Item No.5 of the schedule property is more than Rs.5,00,00,000/- as per present market value. The Decree Holder wantonly shown the market value as very low.

It is further averred that the E.P. amount is very much low i.e. Rs.38,70,410/- when compared with the market value of the schedule property is more than Rs.8,00,000/- which will come for public sale auction. As per the citation of ALD 2009 (5) 526, the Executing Courts are under obligation to ensure that only such extent of property attached in a decree, as is sufficient to meet the liability under the decree, is brought to sale. Selling of large extents of property, whose value for exceeds the decreetal amount, is totally unjustified. The Judgment Debtor filed Appeal No.725/2023 against the Decree and Judgment passed by the Hon'ble Court in O.S.No.48/2017 on the file of this Court before the Hon'ble High Court of Andhra Pradesh and the same is pending for adjudication and finally prayed for dismissal.

• 4. No oral or documentary evidence is adduced on either side.
• 5. Heard both sides and perused the record.

6. Now, the point for consideration is:

"Whether the contention raised by the Judgment Debtor is tenable one and whether the properties can be brought for sale or not? "

Point:

7. Even though there are five items and a separate value was given by the Decree Holder as well as the Judgment Debtor in the counter, but the Judgment Debtor did not file any market valuation certificate, so also, the Decree Holder. As rightly submitted by the Counsel for the Judgment Debtor that it is the duty of the Court to see only the item of the property which is sufficient for E.P. warrant amount is to be put for sale but not all the properties and the Court has to see the interest of the Judgment Debtor also. Thereby, if really the contention of the Judgment Debtor is correct, at the time of auction, the Court will put only one property for auction, but not all the properties. The Judgment Debtor is at liberty to file the market value certificate. So, that the Court can come to a conclusion which item is sufficient for satisfaction of the warrant amount. Thereby, I am inclined to allow this petition.

8. In the result, the petition is allowed. The Judgment Debtor is directed to file the market value certificate for all the items of the E.P. Schedule property. The Decree Holder is directed to file S.P and E.C.

Dictated to Stenographer Grade-I, transcribed by her, corrected and pronounced by me, in Open Court, on this the 1 st day of May, 2024.

Sd/- G. Kabardhi I ADDITIONAL DISTRICT JUDGE, NELLORE.

E.P.No.643/23 OS 48/2017

Appendix of evidence

Witness Examined

Documents marked

N I L

Sd/- G. Kabardhi I ADDITIONAL DISTRICT JUDGE, NELLORE

//True copy//

E.P.No.643/2 3 OS 48/2017