IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 OP(C).No. 4216 of 2011(O) ------------------------- OS.157/2009 of PRINCIPAL SUB COURT, PALAKKAD .................... RESPONDENTS: ---------------------- 1. JAYAPRAKASH.V, S/O.VELAYUDHAN, PUNNAKODE KALAM (PURAKKODE KALAM) MANCHIRA, CHITTUR.P.O, PALAKKAD DISTRICT. 2. INDU JAYAPRAKASH, W/O.JAYAPRAKASH.V, PUNNAKODE KALAM (PURAKKODE KALAM) MANCHIRA, CHITTUR.P.O, PALAKKAD DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS: ---------------------- 1. CATHOLIC SYRIAN BANK LIMITED, REGISTERED OFFICE AT THRISSUR, REPRESENTED BY ITS CHITTUR BRANCH MANAGER, PALAKKAD DISTRICT - 678 001. 2. P. VISWANATHAN, S/O. MADHAVAN NAIR, 11/22, NEDUNGODE, CHITTUR TALUK, PALAKKAD DISTRICT - 678 001. R1 BY ADV.SRI.R.S.KALKURA THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JV OPC NO: 4216/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF EP NO: 144/2010 IN OS NO: 157/2009 ON THE FILE OF SUBORDINATE JUDGE'S COURT PALAKKAD P2: COPY OF THE ORDER DATED 24.11.2011 PASSED IN EP NO: 144/2010 IN OS NO: 157/2009 ON THE FILE OF SUBORDINATE JUDGE'S COURT PALAKKAD P3: COPY OF THE COUNTER STATEMENT DATED 17.12.2011 FILED BY THE PETITIONERS IN EXT.P1 EXECUTION PETITION. P4: COPY OF THE APPLICATION FILED TO RECEIVE EXT.P3 ON FILE. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO JUDGE JV THOMAS P.JOSEPH, J. ==================================== O.P(C) No.4216 of 2011 ==================================== Dated this the 21st day of December, 2011 J U D G M E N T First respondent appears through counsel. 2. Judgment debtors 1 and 2 in E.P. No.144 of 2010 in O.S. No.157 of 2009 of the court of learned Sub Judge, Palakkad are aggrieved by Ext.P2, order dated 24.11.2011 directing proclamation and sale of property of petitioners on 02.01.2012 for realization of amount due to the first respondent. According to the petitioners the executing court has not fixed the upset price notwithstanding that it is a suit for money with charge over mortgaged property. It is contended that though belatedly, petitioners have preferred Ext.P3, counter statement showing value of the property as Rs.17,75,000/-. 3. Learned counsel for first respondent submitted that when Ext.P2, order was passed there was no objection preferred by petitioners against the notice under Rule 66 of Order XXI of the Code of Civil Procedure and hence there was no necessity to incorporate in the sale notice value of property now stated in Ext.P3, counter statement. It is pointed out by learned counsel that in the sale notice Rs.3,00,000/- is fixed as upset price and O.P(C) No.4216 of 2011 -: 2 :- there is no reason to interfere with Ext.P2, order. It is also submitted that remedy if any of petitioners is to request the executing court to recall the order dated 24.11.2011 if it is provided under law. 4. In response it is contended by learned counsel that petitioners intend to file an application for review of Ext.P2, order. I make it clear that if law provides it is open to the petitioners to move such application and if moved, executing court shall decide the same as provided under law. 5. Now sale of property is scheduled to be held on 02.01.2012. Petitioners seek some time to discharge the decree debt. Having regard to the circumstances stated I am inclined to direct that the sale be adjourned for some time but subject to conditions. Resultantly, Original Petition is disposed of as follows: (a) Learned Sub Judge, Palakkad is directed to adjourn sale pursuant to Ext.P2, order scheduled to be held on 02.01.2012 to a day after one month from 02.01.2012 subject to the following conditions: O.P(C) No.4216 of 2011 -: 3 :- (i) That petitioners filed affidavit in the executing court without prejudice to their contentions regarding value of property before the time scheduled for sale waiving fresh proclamation for such sale. (ii) That petitioners pay/deposit in the executing court for payment to the first respondent Rs.30,000/- (Rupees Thirty thousand only) within three weeks from this day. (b) It is made clear that it will be open to the petitioners to request the executing court facility to pay the balance amount due in installments. (c) If any request for review of Ext.P2, order is made, executing court shall decide that application as provided under law. O.P(C) No.4216 of 2011 -: 4 :- (d) In case any of conditions (i) & (ii) is not complied, it will be open to the executing court to proceed with sale of property pursuant to Ext.P2, order. THOMAS P. JOSEPH, JUDGE. vsv