IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 OP(C).No. 235 of 2010(O) ------------------------ AGAINST THE ORDER IN EP.48/04,EA.292/10 IN OS.41/1999 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER: -------------------- K.PRADOSH, S/O.KESAVAN, AGED 42 YEARS, 'VASANTHINIVAS', KARNAKI NAGAR, MOOTHANTHARA, KOPPAM AMSOM, PALAKKAD. BY ADV. SRI.BINOY VASUDEVAN SRI.R.MANIKANTAN SMT.P.G.BABITHA RESPONDENT: --------------- NABEESA, W/O.ABDULLAHKUTTY, CHELATTUPARAMBU, KULICHANKULANGARA, PIRAYIRI AMSOM, PALAKKAD TALUK - 678 019. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.235 of 2010 --------------------------------------- Dated this 08th day of October, 2010 JUDGMENT Petitioner/decree holder in E.A.No.292 of 2010 in E.P.No.48 of 2004 in O.S.No.41 of 1999 of the court of learned Sub Judge, Palakkad is the petitioner before me. There is a compromise decree for recovery of money in his favour. Since respondent did not pay the amount he launched execution vide E.P.No.48 of 2004. Property of respondent-8½ cents and building was sought to be sold in execution of the decree. Learned Sub Judge thought, obviously invoking power under Rule 64 of Order XXI of the Code that sale of a portion of the property would satisfy the decree debt and directed sale of 2 cents after fixing the upset price. Necessary proclamation was made and the property was brought up for sale but there were no bidders. Therefore learned Sub Judge by the impugned order has directed fresh publication observing that there happened to be no bidders as there was no wide publication. That order is under challenge. Learned counsel contends that since the extent of property proclaimed for sale is only 2 cents and that too, without providing a way there is no possibility for any bidder purchasing the property and hence direction may be issued to the learned Sub Judge to proclaim and O.P(C).No.235 of 2010 : 2 : sell the entire property as there is no possibility of carving out a suitable area including the building portion. 2. So far as the impugned order is concerned, it is seen that executing court has observed that there was no wide publication and hence no bidders approached to purchase the property. That being a discretionary jurisdiction exercised by the executing court, I do not find reason to interfere with that. If in making a wider publication petitioner has to incur cost, that would part of the cost payable in execution. Petitioner has to take out publication as ordered by the executing court. But I make it clear that if there is no bidder in spite of such wide publication, the exercise need not be continued and it will be open to the decree holder to request the executing court to proclaim and sell a larger extent of property with provision for access to such property if necessary. If carving out a larger extent of the property sufficient to satisfy the decree debt without affecting the building portion is found impossible, petitioner/decree holder can request the executing court to proclaim and sell the entire property fixing appropriate upset price for satisfaction of the decree debt. With the above observation this petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-