IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 WP(C).No. 10918 of 2008(Y) ---------------------------------------- OS.170/2000 of ADDL.SUB COURT, ALAPPUZHA .................... PETITIONER: ------------------ 1. ANILKUMAR.V., S/O.THE LATE VAMADEVAN, PARTNER, ANAJANEYA AUTOMOBILES, BHAIMI MANDIR, OLD THIRUMALA WARD, ALLEPPEY-10. 2. JALAJA.P.R., W/O.REMESHKUMAR, PUTHENPARAMBIL HOUSE, MARARIKULAM, ALLEPPEY. BY ADV. SRI.C.S.MANU SRI.S.K.PREMRAJ SRI.ANOOP JOSEPH SRI.ABHILASH AKBAR SRI.T.B.SIVAPRASAD RESPONDENTS: ----------------------- LORD KRISHNA BANK LTD., ALLEPPEY BRANCH, REPRESENTED BY ITS BRANCH MANAGER. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== W.P.(C) No.10918 OF 2008 ===================== Dated this the 9th day of April 2008 JUDGMENT This writ petition is preferred to set aside Ext.P5 order dated 12.12.2007 in E.A.No.413/2007 in E.P.No.147 of 2005 in O.S.No.170 of 2000 on the file of the Addl.Sub Judge, Alappuzha. The court below held that being a mortgage decree and the necessary extent is not shown, the prayer cannot be allowed. When it is a mortgage decree unless the decree for sale permits a portion of the property to be sold the executing court cannot go beyond the decree is the dictum laid down by a Division Bench of this Court in Dhanalakshmi Bank Ltd.v. Divakaran(2000(2) KLT 231). It has also to be stated that if there are two items of property and if those items of properties are separately sold on the basis of item vice and then if by sale of one of the items of property, the decree debt is satisfied, then there is no necessity to proceed with the sale of other property. The decision of the Division Bench does not prevent a sale in that modality. The property proposed to be sold is one item having 35 cents which is item No.1 comprised in Sy.No.273/6/1 and the other item of property is a property having an area of 14 sq. metres with a building. It is submitted that the WP(C) 10918/2008 -:2:- property having 14 sq.metres with the building therein may be sold as a separate item and 35 cents of property as another item. If the decree debt is satisfied by sale of these 14 sq.metres of land with the building necessarily the court need not sell the other item of property. Therefore, I dispose of the writ petition as follows: The court below is directed to sell 14 sq.metres of property with the building therein as the first item and the other property as the second item by publication and ordering sale on the very same day with a further rider that if the decree amount is satisfied with the sale of 14 sq metres of land with the building, not to proceed with the sale of the other property. The court shall fix separate upset price for both the properties, direct the decree holder as well as the judgment debtors to furnish their value for the property, publish a revised proclamation and conduct the sale as proposed on 4.6.2008 after completing these formalities. To enable the parties to do so, I direct the case to be posted on 22.5.2008 for the said purpose. M.N.KRISHNAN, JUDGE Cdp/-