IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 WP(C).No. 24273 of 2008(M) -------------------------- AGAINST THE ORDER IN E.P. 45/2005 IN OS.102/1986 of SUB COURT, OTTAPPALAM .................... PETITIONER: ------------ MOHAMMEDALI,S/O.MOHAMMEDUNNI, KAPPUNGAL HOUSE,EDATHANATTUKARA AMSOM DESOM, MANNARGHAT,PALAKKAD DISTRICT. BY ADV. SRI.O.V.MANIPRASAD RESPONDENTS: ----------------- 1. SAINABA,W/O.ABDUL RAZAK MOULAVI, KUMBATH VALAPPIL HOUSE,OTHALUR AMSOM,KOKKUR DESOM, PALAKKAD DISTRICT. 2. MUHAMMED,S/O.ABDUL RAZAK MOULAVI, KUMBATH VALAPPIL HOUSE,OTHALUR AMSOM,KOKKUR DESOM, PALAKKAD DISTRICT. 3. AYISHABI,D/O.ABDUL RAZAK MOULAVI, KUMBATH VALAPPIL HOUSE,OTHALUR AMSOM,KOKKUR DESOM, PALAKKAD DISTRICT. 4. ABDUL LATHEEF,S/O.ABDUL RAZAK MOULAVI, KUMBATH VALAPPIL HOUSE,OTHALUR AMSOM,KOKKUR DESOM, 5. SAJITHA,D/O.ABDUL RAZAK MOULAVI, KUMBATH VALAPPIL HOUSE,OTHALUR AMSOM,KOKKUR DESOM, PALAKKAD DISTRICT. 6. ANWAR,S/O.ABDUL RAZAK MOULAVI, KUMBATH VALAPPIL HOUSE,OTHALUR AMSOM,KOKKUR DESOM, PALAKKAD DISTRICT. 7. FARIJA,D/O.ABDUL RAZAK MOULAVI, KUMBATH VALAPPIL HOUSE,OTHALUR AMSOM,KOKKUR DESOM, PALAKKAD DISTRICT. 8. GAFOOR,S/O.ABDUL RAZAD MOULAVI, KUMBATH VALAPPIL HOUSE,OTHALUR AMSOM,KOKKUR DESOM, PALAKKAD DISTRICT. 9. NABEESA,W/O.MUHAMMED UNNI HAJI, KAPPINGAL HOUSE,EDATHANATTUKARA AMSOM DESOM, PALAKKAD DISTRICT. 10. HARITHA,D/O.MUHAMMED UNNI HAJI, KAPPINGAL HOUSE,EDATHANATTUKARA AMSOM DESOM, PALAKKAD DISTRICT. 11. SAINABA,D/O.MUHAMMED UNNI HAJI, KAPPINGAL HOUSE,EDATHANATTUKARA AMSOM DESOM, PALAKKAD DISTRICT. 12. THITHU,D/O.MUHAMMED UNNI HAJI, KAPPINGAL HOUSE,EDATHANATTUKARA AMSOM DESOM, PALAKKAD DISTRICT. 13. SUHARA,D/O.MUHAMMED UNNI HAJI, KAPPINGAL HOUSE,EDATHANATTUKARA AMSOM DESOM, PALAKKAD DISTRICT. 14. MUBAK AHAMMED,S/O.MUSHAFA HAJI, THOTTKKADAVU,CHANAKKUNDIL,NILAMBUR,ERNAD TALUK. 15. MUKTHAR AHAMMED,S/O.MUSTHAFA HAJI, THOTTKKADAVU,CHANAKKUNDIL,NILAMBUR,ERNAD TALUK. 16. BASHEER AHAMMED,S/O.MUSHAFA HAJI, THOTTKKADAVU,CHANAKKUNDIL,NILAMBUR,ERNAD TALUK. 17. MANSOOR AHAMMED,S/O.MUSTHAFA HAJI, THOTTKKADAVU,CHANAKKUNDIL,NILAMBUR,ERNAD TALUK. 18. RASHEEYABI,S/O.MUSTHAFA HAJI, THOTTKKADAVU,CHANAKKUNDIL,NILAMBUR,ERNAD TALUK. 19. KHALUDIL RAHMAN,S/O.MUSHAFA HAJI, THOTTKKADAVU,CHANAKKUNDIL,NILAMBUR,ERNAD TALUK. 20. HABEEB RAHMAN,S/O.MUSTHAFA HAJI, THOTTKKADAVU,CHANAKKUNDIL,NILAMBUR,ERNAD TALUK. 21. JAMAL AHAMMED,S/O.MUSTAFA HAJI, THOTTKKADAVU,CHANAKKUNDIL,NILAMBUR,ERNAD TALUK. 22. JASMIN,D/O.MUSTHAFA HAJI, THOTTKKADAVU,CHANAKKUNDIL,NILAMBUR,ERNAD TALUK. 23. MUHAMMED,S/O.MUSTHAFA HAJI, THOTTKKADAVU,CHANAKKUNDIL,NILAMBUR,ERNAD TALUK. 24. KAMARUNEESA,D/O.MUSTHAFA HAJI, THOTTKKADAVU,CHANAKKUNDIL,NILAMBUR,ERNAD TALUK. 25. MUNEER HAJI,S/O.MUSHTHAFA HAJI, THOTTKKADAVU,CHANAKKUNDIL,NILAMBUR,ERNAD TALUK. 26. SIDDIKUL AKBAR,S/O.MUSTHAFA HAJI, THOTTKKADAVU,CHANAKKUNDIL,NILAMBUR,ERNAD TALUK. 27. UMAL FAREEQ,S/O.MUSTHAFA HAJI, THOTTKKADAVU,CHANAKKUNDIL,NILAMBUR,ERNAD TALUK. 28. FATHIMATH SUHARA,S/O.MUSTHAFA HAJI, THOTTKKADAVU,CHANAKKUNDIL,NILAMBUR,ERNAD TALUK. 29. MUJEEB RAHMAN,S/O.MUSTHAFA HAJI, THOTTKKADAVU,CHANAKKUNDIL,NILAMBUR,ERNAD TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.24273 OF 2008 =========================== Dated this the 13th day of August, 2008 JUDGMENT Petitioner is the third respondent in E.P.45/22005 in O.S.102/1986 on the file of Sub Court, Ottapalam. Petitioner is one of the legal heirs of the deceased first judgment debtor. This petition is filed under Article 227 of the Constitution of India challenging Ext.P6 and P7 orders passed by Sub Court in the execution petition directing proclamation and sale. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel submitted that on receipt of Rule 66 notice Ext.P5 objection was jointly filed by petitioner, and four other judgment debtors and the executing court did not consider the objections and instead posted the case for proclamation. Learned counsel argued that as the objections raised by judgment debtors were not W.P.(C)24273/2008 2 considered and the execution petition was posted for sale, the order is to be set aside. 4. In view of the order to be passed in this petition, I do not find it necessary to issue notice to the decree holder. 5. Ext.P5 objection to Rule 66 notice shows that objection was filed on 22.8.2007 raising several contentions with regard to the value of the property as well as the improvements in the property. Whether the objections are sustainable or not is to be decided by the executing court. Ext.P7 order shows that on 5.7.2008 the following order was passed. “Proclaim and sell on 14.8.2008 and hearing to 16.8.2008” The order does not show that Ext.P5 objection was considered or rejected. Ext.P6 order shows that on 4.6.2008 execution petition was taken up and it was posted for settlement of proclamation to 5.7.2008 on which day Ext.P7 order was passed. In view of the ambiguity, registry was directed to ascertain W.P.(C)24273/2008 3 the fact whether objection raised by judgment debtors to Rule 66 notice and the draft sale paper was considered by the learned Sub Judge and Ext.P7 order was passed thereafter. It is reported that the case was originally posted on 7.11.2007 and was adjourned for enquiry recording that counter was filed to Rule 66 notice for enquiry and it was adjourned several times and on 4.6.2008 it was posted for settlement and proclamation to 5.7.2008 on which day Ext.P7 order was passed. It is clear that Ext.P5 objection was not considered. In such circumstance, Ext.P7 order is quashed. Learned Sub Judge is directed to consider Ext.P5 objection and pass orders and proceed with the execution petition in accordance with law. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006