IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 WP(C).No. 23497 of 2008(V) -------------------------- EP.31/2002 of SUB COURT, OTTAPPALAM .................... PETITIONER: ------------ P.MOHAMMED, S/O.AHAMMED KUTTY, AGED 53 YEARS, PURAKOTTIL HOUSE, NATTUKAL P.O., THACHANATTUKARA, MANNARKKAD, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS: ------------- 1. THE CATHOLIC SYRIAN BANK LIMITED REPRESENTED BY ITS MANAGER, OLAVAKKODE BRANCH, PALAKKAD. 2. C.A.UNNIKRISHNAN, S/O.APPU GUPTHAN, CHAMPAMPADATH HOUSE, VAKADAPURAM P.O., KARIMPUZHA,PALAKKAD. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No. 23497 of 2008 ------------------------------- Dated this the 5th August, 2008. J U D G M E N T Petitioner is the second judgment debtor in O.S.No.8 of 2001, on the file of Sub Court, Ottappalam. This petition is filed under Article 227 of the Constitution of India for a direction to first respondent-decree holder to set off the amount which was remitted by him towards the value of the property fixed by the court, and to release the title deeds. 2. The learned counsel appearing for the petitioner and learned Standing Counsel appearing for first respondent Bank were heard. 3. The learned counsel appearing for the petitioner argued that as the mortgaged property was sold and petitioner is not personally liable and he has already deposited value of the property towards the decree debt, decree holder is bound to set off that amount towards value of the property, and therefore, the property is to be given back to the petitioner and first respondent-decree holder- auction purchaser is not entitled to take delivery of the property. W.P.(C) No.23497 of 2008 2 4. The learned standing counsel appearing for first respondent Bank submitted that the decree shows that if the decree debt could not be realised by sale of the mortgaged property, both defendants are jointly and severally liable personally. Therefore, the petitioner is not entitled to contend that the amount deposited is to be set off towards the value of the mortgaged property, and property is to be released. The standing counsel further aruged that petitioner had earlier approached this Court three times with similar prayers and this Court granted sufficient time and inspite of that, decree debt was not paid, and, therefore, the property was sold and purchased by the first respondent and sale certificate was also issued and delivery was ordered, and, hence petitioner is not entitled to any relief sought for. 5. The decree passed by Sub Court, Palakkad, shows that the decree provides for not only sale of the mortgaged property. It is also against the defendants personally, if by sale of the mortgaged property, the decree debt cannot be fully realised. In such circumstances, petitioner is not entitled to contend that first respondent is bound to grant set off to the amount deposited in the execution petition or to give back the property. The decree is not only for sale of the mortgaged property. It is a decree against petitioner in W.P.(C) No.23497 of 2008 3 person. First respondent, being the auction purchaser, is entitled to take delivery of the property covered by the sale certificate. Writ petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.