IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 WP(C).No.34308 of 2008(H) ---------------------------------- AGAINST THE ORDER IN E.P.148/2005 IN OS.134/1999 of SUB COURT, MAVELIKKARA .................... PETITIONERS: ----------------- 1. K.SAROJINI AMMA, W/O.LATE KRISHNA PILLAI KATTOOR HOUSE, PALLICKAL P.O., ALAPPUZHA DISTRICT. 2. KRISHNAKUMARI, W/O.RAVEENDRAN NAIR, KATTOOR HOUSE, PALLICKAL P.O., ALAPPUZHA DISTRICT. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP RESPONDENT: ---------------- FEDERAL BANK LTD. ALWAYE, REPRESENTED BY ITS SENIOR BRANCH MANAGER, KAYAMKULAM BRANCH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.34308 of 2008 ------------------------------------------------ Dated this the 20th day of November, 2008 JUDGMENT Judgment debtors in O.S.134/99 on the file of the Sub Judge's Court, Mavelikkara are the petitioners. The respondent/decree holder/ Bank filed E.P.148/05 for realisation of the decree debt by sale of the property that was hypothecated for availing of housing loan. The suit was being decreed on admission and therefore, there was no appeal also. 2. According to the counsel for the petitioners, the petitioners filed Ext.P2 objection disputing the amount calculated by the decree holder in the execution petition and expressing willingness to pay the actual amount due to the respondent, but that there was no adjudication as regards the actual amount. Without such an adjudication, the court issued notice of proclamation for sale W. P. C. No.34308 of 2008 -2- of the scheduled properties fixing the value of the scheduled properties at Rs.2,65,225/- to which the petitioners filed Ext.P3 objection contending that the property is worth more than Rs.1 lakh per cent; that there is a building also in item No.2 property and the value thereof is not shown in the proclamation schedule; and that the description of the property is not correct. According to the learned counsel that also was not considered by the execution court and sale was ordered to be conducted on 22/11/08 fixing the upset price at Rs.2,65,225/-. The petitioners have not produced copy of orders passed on E.P.148/05. From what is produced as Ext.P4, it cannot be made out as to whether it is draft proclamation sent along with Rule 66 notice or it is amended proclamation caused to be filed considering the objections of judgment debtor as well or whether it is W. P. C. No.34308 of 2008 -3- proclamation which has already been settled and proclaimed. Without any of those details this Court is unable to grant reliefs as prayed for in the Writ Petition. The judgment debtor also has not stated in Ext.P2 as to what is the correct amount due and he has not filed any statement of the correct amount that will be due under the decree by filing a statement along with Ext.P2. No specific order passed by the court below is also challenged in this Writ Petition. In the circumstances, it is ordered that if the execution court has not fixed the correct amount due to the decree holder and passed an order to that effect the judgment debtor shall file a statement showing the exact amount due under the decree to the decree holder and if there is difference between the amount shown in the E.P. and the statement so filed the decree holder also will have to be directed to file a proper statement W. P. C. No.34308 of 2008 -4- and the execution court will have to accept whichever is the correct statement or fix the amount that is due under the decree. Considering Ext.P3 objections also it is ordered that the court below shall settle proclamation afresh provided the proclamation now settled, if any, is not showing the value of the property as is contended by the judgment debtor also therein specifying it as value shown by the judgment debtor so as to enable the intending purchasers to have an idea of the market value of the property conducting due enquiry in the matter. If at all the court is of the view that all the items of properties shown in Ext.P4 viz. three items is not necessary to be sold in execution, for satisfying the decree amount, all those items shall not be sold together and shall be separately sold fixing upset price for those properties separately. I dispose of W. P. C. No.34308 of 2008 -5- this Writ Petition with the above general directions as no order of the court below is produced before this Court to enable this court to understand as to what has actually transpired on the execution side in the court below. The petitioners/judgment debtors shall produce a copy of this judgment before the execution court forthwith with notice to the decree holder as this Writ Petition is being disposed of without notice to the respondent/ decree holder. 3. Issue copy of this judgment urgently to the counsel for the petitioners. K.P.BALACHANDRAN, JUDGE kns/-