IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 CRP.No. 557 of 2005 --------------------- ( AGAINST THE ORDER IN EP 101/98 IN OS.127/1997 of MUNSIFFI-MAGISTRATE COURT,PATTAMBI ) REVN. PETITIONER/RESPONDENT/JUDGMENT DEBTOR/DEFENDANT: ---------------------------------------------------------------------------------------------------- KUNHUTTI @ KASIM, S/O.MULAKKAPARAMBIL KOYANNY, KUMARANELLUR AMSOM AND DESOM, IN OTTAPALAM TALUK. BY ADV. SRI.E.R. VENKATESWARAN ADV. SRI.R. SREEHARI RESPONDENTS/PETITIONERS/DECREE HOLDERS/PLAINTIFFS: -------------------------------------------------------------------------------------------- 1. FATHIMAKUTTY, W/O.MULAKKAPARAMBIL KUDIYIRUPPIL KUNHUTTY @ KASIM. 2. FASALU RAHIMAN (NOW MAJOR). 3. FAYIDAS (NOW MAJOR). 4. FASIRUDEEN (NOW MAJOR). 5. FARSANA (NOW MAJOR), (ALL ARE RESIDING AT KUMARANELLUR AMSOM AND DESOM IN OTTAPALAM TALUK.) BY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/01/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO. 1476 OF 2005 IN C.R.P.NO. 557 OF 2005. DISMISSED. 16.01.2008 SD/- K.T. SANKARAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. K.T. SANKARAN, J. ................................................................................... C.R.P. No. 557 OF 2005 ................................................................................... Dated this the 16th January , 2008 O R D E R The petitioner is the judgment debtor in O.S. No. 127 of 1997 on the file of the court of the Munsiff-Magistrate, Pattambi. The suit was filed by the respondents claiming maintenance. The suit was decreed . The property belonging to the revision petitioner was made a charge for the decree amount. 2. The respondent levied execution in E.P.No. 101 of 1998 . The prayer of the decree holder was to sell the property belonging to the judgment debtor. The draft sale proclamation was produced. Objections were filed by the judgment debtor stating that details of the improvements in the property were not shown in the draft sale proclamation. E.A.No. 117 of 2003 was filed by the decree holder to amend the the draft sale proclamation and to incorporate the nature of improvements. The court below allowed that application. 3. In the objections to the amended draft sale proclamation, the judgment debtor contended that there is difference between the property which is sought to be sold and the decree schedule property . He referred to the descriptions of the boundaries of the decree schedule property and of those shown in the draft sale proclamation. It was also contended by the judgment debtor that the description of the property shown in the Execution Petition and in the draft sale proclamation is different. However, there is no case for the judgment debtor that the decree schedule property in the draft sale proclamation is not the same property and that those are different properties. It is also not the case of the judgment debtor that he does not 2 own any right in the property which is sought to be sold. In the objections to the draft sale proclamation, the judgment debtor contended that he has only the right to a 1/5 share in the property shown in the draft sale proclamation. Accordingly, the draft sale proclamation was amended as per the order in E.A.No. 117 of 2003 showing that the judgment debtor has only 1/5 share in the property sought to be sold. Thereafter the petitioner filed objections dated 18.10.2004 putting forward several other objections pointing out that there is difference in the descriptions of the decree schedule property and the property shown in the draft sale proclamation. 4. The court below considered the objections dated 18.10.2004 and held, relying on the encumbrance certificate produced in the case, that the property shown in the encumbrance certificate and the property shown in the draft sale proclamation is one and the same. It is to be noted that attachment was made pending suit. Necessarily, the encumbrance certificate would indicate the attachment as well. If the property attached is different, the encumbrance certificate would not contain the mention about the attachment. This would indicate that the property attached , which is shown as decree schedule property is same as the property shown in the encumbrance certificate. The difference in boundaries or insignificant difference in the extent or in the description would not lead to the conclusion that the property shown in the decree schedule is different from the property which is sought to be sold. 5. There is yet another way of looking at the whole issue. The judgment debtor is bound to pay maintenance to the decree holders. It is charged on his immovable property . Even if there is no charge on any particular item of property, the decree can be executed by sale of any of the properties belonging to the judgment debtor. The judgment debtor has no case that the property which is sought to be sold does not belong to him . On the other hand, his specific case is that he has only 1/5 3 share in the property which is shown in the draft sale proclamation. Therefore, there is no infirmity in the proceeding for the sale of the property shown in the draft sale proclamation. The court below was perfectly justified in overruling the objections to the execution raised by the judgment debtor. I am of the view that the judgment debtor has raised all sorts of contentions to deny the benefits of the decree to the decree holders. Learned counsel for the petitioner raised a contention that though the court below directed, as per the order in E.A.No. 117 of 2003, to amend the draft sale proclamation, the amendment is not carried out. The petitioner is entitled to bring this fact to the notice of the court. If there is an order to incorporate certain details in the draft sale proclamation, necessarily, the court shall direct that a proper sale proclamation shall be issued. I do not see any ground to interfere with the order passed by the court below. The Civil Revision Petition lacks merit and it is accordingly dismissed. No order as to costs. K.T. SANKARAN, JUDGE. lk