IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 WP(C).No. 11548 of 2010(O) --------------------------------------- [OS.NO.585/2004 OF SUB COURT,NEYYATTINKARA] .................... PETITIONER: ------------------- K.PRABHAKUMARI, PUTHUVAL PUTHEN VEEDU, VIZHINJAM.P.O, THIRUVANANTHAPURAM. BY ADV. MR.V.PREM CHAND. RESPONDENTS: ------------------------ 1. C.STEPHEN, GIRIJA BHAVAN, PUTHUKUNNU, POWDIKONAM.P.O., THIRUVANANTHAPURAM. 2. THE SECRETARY, THIRUVANANTHAPURAM CORPORATION, THIRUVANANTHAPURAM. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/04/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 11548 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of April, 2010. JUDGMENT In this writ petition filed under Article 227 of the Constitution of India, the following reliefs are sought for: “i) Declare that the sale conducted on 5.2.2010 in O.S. No.585 of 2004 of Sub Court, Neyyattinkara as illegal and in violation of Order 21 Rules 64 and 72 of Code of Civil Procedure. ii) Direct the 2nd respondent to produce the records relating to Ext.P1 before this Honourable Court.” 2. Petitioner claims to be an employee of Thiruvananthapuram Corporation. She says that she is physically handicapped with 20% permanent disability. She mortgaged a property and availed a loan of Rs.1,39,500/-. Copy of the mortgage deed is produced WPC. 11548/2010. 2 as Ext.P1. It is claimed that the Corporation has been recovering an amount of Rs.775/- from her salary every month. 3. According to the petitioner in O.S. 585 of 2004, an ex-parte decree was passed against her for an amount of Rs.1,04,000/- with 12% interest. Copy of the judgment is produced as Ext.P3. Since the amount remained unpaid, execution proceedings were initiated. E.P. 59 of 2008 was filed to have the decree executed by selling the property of the petitioner. Petitioner had filed objection to the same pointing out that the property had been mortgaged to Corporation of Thiruvananthapuram, and therefore the execution petition is not maintainable in law. However, notwithstanding the contentions of the petitioner to that effect, execution court on 19.12.2009 ordered sale of decree schedule property and the property was sold on 5.2.2010 and now the petition stands posted for confirmation of sale. 4. The main contention of the petitioner was that the property had been brought to sale without considering WPC. 11548/2010. 3 the objections of the petitioner. Since the property was mortgaged to the Corporation of Thiruvananthapuram, they have the first charge over the same. On that basis, the sale conducted on 5.2.2010 is void. 5. No order as such is challenged before this court. If the petitioner had a case that the sale is bad in law, he had to take recourse to the provisions of CPC. Further the contention that because the property is mortgaged to Corporation of Thiruvananthapuram, it could not be brought to sale is clearly untenable in law. Petitioner still retains equity of redemption and that can be brought to sale. The fact that the court has been informed about the same only means that the decree holder is made aware of the mortgage and if he still he wants to sell the property, it is at his risk, and that cannot vitiate the sale. If the petitioner has any grievance regarding the sale, it will be open for him to take recourse to such steps which are available to him in law. WPC. 11548/2010. 4 6. At any rate, the declaration sought for cannot be granted in this petition filed under Article 227 of the Constitution of India. If the petitioner feels that he has got grievance regarding the same, he may file an appropriate application before the court below and get the same adjudicated. With the above observation, this writ petition is dismissed. P. BHAVADASAN, JUDGE sb.