IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 WP(C).No. 6074 of 2008(W) ------------------------- AGAINST THE ORDER DATED 08/02/2008 IN EP.164/2006 IN OS.88/2000 of ADL.SUB COURT, THALASSERY .................... PETITIONERS: --------------------- 1. SRI.K.P.ABDUL SATHAR, S/O.KADEEJA, AGED 45 YEARS, RESIDING AT "ZAREENA MANZIL" NEAR S.N.COLLEGE, THOTTADA, KANNUR-7. 2. K.P.AMEER, S/O.KADEEJA, AGED 55 YEARS, RESIDING AT KADEEJA MANZIL, PUTHIYATHERU, CHIRAKKAL, KANNUR 11. 3. C.P.KADEEJA, AGED 39, RESIDING AT C.P.HOUSE, MUZHAPPILANGAD, KANNUR. BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENTS: ------------------------ 1. NEDUNGADI BANK, AMALGAMTED WITH PUNJAB NATIONAL BANK KANNUR, THROUGH IT'S BRANCH MANAGER, KANNUR. 2. M/S.JANATHA TRADERS, HAJEE ROAD, KANNUR. 3. K.P.RUKIYABI, KADEEJA MANZIL, PUTHIYATHERU, KANNUR.11 4. K.P.ABDUL SALAM, KADEEJA MANZIL, PUTHIYATHERU, KANNUR-11. 5. K.P.BEEPATHU, KADEEJA MANZIL, PUTHIYATHERU, KANNUR.11 Kss ..2/- ...2.... WPC.NO.6074/2008 W 6. K.P.MARIYUMMA, KADEEJA MANZIL, PUTHIYATHERU, KANNUR.11 7. K.P.SAIBU, KADEEJA MANZIL, PUTHIYATHERU, KANNUR.11 8. K.P.KHAIRA, KADEEJA MANZIL, PUTHIYATHERU, KANNUR.11 9. K.P.SADIQUE, KADEEJA MANZIL, PUTHIYATHERU, KANNUR.11 BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 6074 OF 2008 = = = = = = = = = = = = = = = Dated this the 21st day of February, 2008. J U D G M E N T This writ petition is preferred against the order of the Addl. Subordinate Judge, Thalassery in E.P.164/06 in O.S.88/00 and for setting aside Ext.P6 order. Admittedly the Bank has obtained a decree against the writ petitioners and they had put the decree into execution by sale of the mortgage property. Ext.P5 is the objection raised by the writ petitioners wherein it is contended that the property is worth more than 50 lakhs and the centage value is more than 2 lakhs. It is also contended that the property is situated in Puthiyatheru which is an upcoming township in Kannur. Under Ext.P6 order the Court just held that no document is produced to substantiate the centage value of the property and therefore fixed the upset price at 10 lakhs and ordered sale on 28.2.2008. W.P.C 6074 OF 2008 -:2:- 2. I am afraid there has not been a proper application of mind in fixing the value of the property. So far as the contention of the writ petitioners that the entire property need not be sold cannot be considered in the light of the decision of this Court in Dhanalakshmi Bank Ltd. Divakaran (2002 (2) KLT 231). In the said decision this Court held that unless the mortgage decree provides for sale of the property in portion the executing Court cannot go beyond the decree passed by the Court and therefore a portion of the mortgage property cannot be sold. There is nothing indicative to show that the Court decree provides for sale of a portion of the property. So the said contention cannot be accepted. 3. So far as the value of the property is concerned it is desirable the Court fixes an upset price after considering the materials available and not to fix it arbitrarily. There must be reasonings for fixing the upset price when the Court chooses to fix the upset price. Therefore the order requires interference and therefore the Court below is directed to W.P.C 6074 OF 2008 -:3:- consider the matter afresh and fix the upset price after heari g both sides, then proceed with the sale. The sale propos d to be held on 28.2.2008 is deferred till a decision is taken on the upset price after hearing both sides. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-