IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 WP(C).No. 968 of 2008(M) ---------------------------------- CEP.455/1999 OF I ADDL.SUB COURT, KOZHIKODE ........................................... PETITIONERS: ------------------- 1. K.A.GOPINATHAN, S/O LATE BALAKRISHNAN NAIR, VETTUVOR KANDIYIL HOUSE, CHERUPPA AMSOM AND DESOM, KOZHIKODE TALUK. 2. K.A.SHYLAJA, D/O LATE BALAKRISHNAN NAIR, VETTUVOR KANDIYIL HOUSE, CHERUPPA AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.VIJAYAKUMAR RESPONDENTS: --------------------- 1. PUNJAB NATIONAL BANK, MAVOOR BRANCH AS SUCCESSOR IN INTEREST OF M/S NEDUNGADI BANK, REPRESENTED BY MANAGER, P.O.MAVOOR, KOZHIKODE DISTRICT. 2. DEPUTY GENERAL MANAGER(RECOVERY SECTION) PUNJAB NATIONAL BANK, BANK ROAD, KOZHIKODE. BY ADV. SRI.P.K.SURESH KUMAR SMT.PRIYA VIJAYAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 968/2008 M APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE JUDGMENT IN OS NO. 227/93 OF SUB COURT, KOZHIKODE. EXT.P2. COPY OF THE EA NO. 194/07 IN EP NO. 455/99IN OS NO. 227/93 FILED BY THE RESPONDENT EXT.P3. COPY OF THE COUNTER IN EA NO. 194/2007 IN EP NO. 455/99 IN OS NO. 227/93. EXT.P4. COPY OF THE EA NO. 493/07 FILED BY THE PETITIONERS. EXT.P5. COPY OF THE EA NO. 718/07 FILED BY THE PETITIONERS. EXT.P6. COPY OF THE APPLICATION FOR ONE TIME SETTLEMENT SUBMITTED BY THE PETITIONER. RESPONDENT'S EXHIBITS NIL. True copy tga M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 968 OF 2008 = = = = = = = = = = = = = = = Dated this the 12th day of February, 2008. J U D G M E N T This writ petition is preferred with a prayer to direct the Addl. Sub Judge, Kozhikode to pass orders on E.A.493/07 for sending out an Advocate Commissioner for proper valuation of the property and also to confirm the sale of the petitioner's property to the extent absolutely necessary to satisfy the decreetal debt and for a further direction to the respondent to consider Ext.P6 for one time settlement. So far as the second prayer regarding the portion of the property to be sold it cannot be accepted for the reason that it is a mortgage decree and a Division Bench of this Court in Dhanalakshmi Bank Ltd. v. Divakaran (2000 (2) KLT 231) had held that unless there is a specific direction in the decree itself providing for sale of a portion of the property the Court has no power to split it and sell it. Admittedly there is no such direction in the decree and therefore that cannot be considered. W.P.C 968 OF 2008 -:2:- 2. So far as the first prayer is concerned a Commissioner is requested to be appointed. It is a well settled proposition now that it is not incumbent upon the Court to fix the value of the property but when a decree holder is permitted to participate in the sale in a mortgage decree under Order 21 Rule 72-A reserve price has to be fixed which shall not be less than the amount due from the judgment debtor to the decree holder. Even then there is no bar in showing the valuation of the property estimated by the judgment debtor in the draft proclamation. Therefore the writ petition is disposed of directing the decree holder, Bank to submit a fresh draft proclamation incorporating the value suggested by the judgment debtor as well and the Court to proceed with the sale strictly in accordance with law under Order 21 Rule 72(A) of the Code of Civil Procedure. If the Bank and the judgment debtor are in a position to negotiate the matter for settlement this judgment will not stand in the way. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-