IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M. SASIDHARAN NAMBIAR MONDAY, THE 27TH AUGUST 2007 / 5TH BHADRA 1929 W.P(C).No. 25853 of 2008(C) -------------------------- AGAINST THE ORDER IN EP 179/2004 IN O.S.20/2002 OF SUB COURT, MUVATTUPUZHA .................... PETITIONER: ------------ JOSE, AGED 70, S/O.MANI, KURUVITHADATHIL VEEDU, PERUMBALLURKARA, ARAKUZHA VILLAGE, MUVATTUPUZHA TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT: ------------- THE KSHEMA VILASAM KURI COMPANY LTD, THRISSUR, THRISSUR.P.O, THRISSUR DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 25853 OF 2008 ............................................ DATED THIS THE 27th DAY OF AUGUST, 2008 JUDGMENT Petitioner is the judgment debtor, respondent, the decree holder. This petition is filed under Article 227 of Constitution of India challenging Ext.P3 proclamation issued by court in E.P.179 of 2004 in O.S.20 of 2002 on the file of Sub Court, Moovattupuzha. Case of the petitioner is that the property proclaimed for sale under Ext.P3 is the mortgaged property and the property is worth more than One Crore and the upset price fixed is only Rs.4,74,124/-, even though the decree debt is Rs.7,02,572/-. It is contended that executing court should have fixed the reserve price as provided under Rule 72A of XXI of Code of Civil Procedure and in such circumstances, Ext.P3 is to be quashed. 2. Learned counsel appearing for petitioner was heard. 3. In view of the order to be passed in this petition, it is not necessary to issue notice to respondents. 4. Though learned counsel appearing for petitioner argued that, being a mortgage decree, court is bound to fix the reserve price, fixing of a reserve price is warranted only if the decree WP(C) 25853/2008 2 holder seeks permission of the executing court to bid and purchase in the court auction sale as provided under Rule 72A of XXI of Code of Civil Procedure. If the decree holder has filed an application under Rule 72A for bid and purchase, executing court is bound to fix a reserve price, which shall not be below the decree debt under the mortgage. If the executing court has not fixed a reserve price, if permission is granted, executing court cannot permit the decree holder to purchase the sale of the mortgage property. 5. Learned counsel submitted that petitioner was set exparte and even though application was filed to set aside the exparte order, that petition was dismissed and petitioner did not get copy of the order and in such circumstances, petitioner is prepared to pay a portion of the decree debt and he may be granted permission to pay the balance due in instalments. 6. I do not find any reason to quash Ext.P3 sale proclamation as sought for. If petitioner pays Rs.1,00,000/- before the executing court on or before the date fixed for sale, executing court shall grant an adjournment of sale. If an adjournment is to be granted for more than one month, petitioner has to file an affidavit waiving fresh proclamation as WP(C) 25853/2008 3 provided under sub-rule 2 of Rule 69 of Order XXI of Code of Civil Procedure. If petitioner files an application for permission to pay the balance decree debt in fixed instalments, learned Sub Judge shall consider the same and pass appropriate order in accordance with law, after hearing the parties. M.SASIDHARAN NAMBIAR, JUDGE lgk/-