IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 WP(C).No. 35182 of 2008(L) -------------------------------------------- OS.950/2000 of SUB COURT, THRISSUR ............ PETITIONER/JUDGMENT DEBTOR: MUHAMMED, S/O.UMARAKOTTIL ABDUL RAHIMAN, P.O.KUMARANELLUR, PARUTHIPRA DESOM, ENKAKKAD VILLAGE, THALAPPILLY TALUK. BY ADV. SRI.D.ANIL KUMAR RESPONDENTS/DECREE HOLDER: 1. SILAIRE INVESTMENTS AND HIRE PURCHASES PRIVATE LIMITED, ROOM NO.26/721, RICE BAZAR, P.C.V.BUILDING, CHEMBUKAVU VILLAGE, THRISSUR TALUK REP. BY ITS MANAGING DIRECTOR. 2. SILAIRE INVESTMENTS AND HIRE PURCHASES PRIVATE LIMITED, REPRESENTED BY ITS DIRECTOR, PRINCE & JOSEPH, S/O.KUTTIYANIYIL THOMAS BERNARD, THICHURU DESOM, THALAPPILLY TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.35182 of 2008 L -------------------------- JUDGMENT Petitioner is the judgment debtor in O.S.No. 950/00 on the file of the Sub Court, Thrissur. Respondents/decree holders filed E.P.No.23/08 in the court below to have the money decree obtained by them executed and amounts recovered by sale of the property belonging to the judgment debtor, which was charged under the decree. 2. The grievance of the petitioner is that the execution court has not at all adopted the procedures to be followed in such cases and has casually settled the proclamation as submitted by the decree holders and ordered the property to be proclaimed for sale vide order dated 3.10.2008 and posted the case for sale, whereas, on 3.10.2008, an objection has been filed by the petitioner to Rule 66 notice pointing out that the amount of Rs.50,000/- shown as the value of the property is very meagre and that the property is really worth WPC 35182/08 2 Rupees Eight lakhs. 3. Petitioner has produced the endorsements made by the court below on E.P.No.23/08, which shows that the execution court has ordered Rule 22 notice to the judgment debtor and posted the case to 24.3.2008 and thereafter to 5.6.2008. But, on that day, there was no sitting and the case was adjourned to 10.7.2008. On 10.7.2008, the judgment debtor prayed for time to file counter and the case was adjourned to 15.8.2008, on which day also, there was no sitting and the case was adjourned to 15.9.2008. The endorsement in the order sheet on 15.9.2008 is “settlement of proclamation, steps on 3.10.2008”. The endorsement on 3.10.2008 is “for proclamation on 22.10.2008” and the endorsement on 22.10.2008 is “for sale, steps - 2.12.2008”. From the order passed on 15.9.2008, it is not clear as to whether proclamation was settled on that day and for what purpose was the EP adjourned to 3.10.2008. Filing of objection by the judgment debtor on WPC 35182/08 3 3.10.2008 is not made mention of. Unless settlement of proclamation is had, the property cannot be proclaimed for sale. It does not appear from the order of the execution court as to whether the court has accepted the upset price shown in the draft proclamation or has applied its mind to the value of the property in the proclamation schedule. 4. Further, when Rule 22 notice is issued to the judgment debtor, what one expects is for the judgment debtor to file objection to the executability of the decree and not objection to the draft proclamation. Immediately after ordering Rule 22 notice and the judgment debtor entering appearance pursuant thereto, without any further notice under Rule 66, the court has passed on to the stage of settlement of proclamation, without an order being passed allowing the decree holders to execute the decree, when only the stage of Rule 22 notice will be over. On the whole, the entire steps adopted by the execution court to bring the WPC 35182/08 4 property to sale on the application of the decree holders is not at all in conformity with the provisions under Order XXI CPC. 5. In the result, even without notice to the respondents/decree holders, I set aside the entire proceedings adopted by the execution court on Exhibit P2 execution application ever after 15.8.2008 and direct the court below to proceed afresh from that stage. Petitioner is directed to produce a copy of this judgment in the court below forthwith with notice to the respondents/decree holders, as this writ petition is being disposed of without notice to them. The sale posted to 2.12.2008 is stopped. The writ petition is disposed of with the above directions. Issue copy of this judgment to the counsel for the petitioner urgently. 28th November, 2008 (K.P.Balachandran, Judge) tkv