IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 22ND AUGUST 2008 / 31ST SRAVANA 1930 WP(C).No. 25416 of 2008(A) -------------------------- OS.2/2005 of SUB COURT, KASARAGOD .................... PETITIONER: ----------------- ABDUL KHADER, AGED 55 YEARS, S/O SEEDHI, RESIDING AT CHERUNHI HOUSE, KUMBADAJE VILLAGE AND POST, KASARGOD TALUK AND DISTRICT. BY ADV. SRI.T.K.VIPINDAS RESPONDENTS: ------------------------ SATHYANARAYANA BHAT, S/O LATE K.KRISHNA BHAT, RESIDING AT NARAMPADY, NEKRAJE VILLAGE, KASARGOD TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J ---------------------------------- W.P.(C) No. 25416 OF 2008 ----------------------------------- Dated this the 22nd day of August, 2008 J U D G M E N T Petitioner is the Judgment Debtor and the respondent the Decree holder. Ext. P1 award was passed by Kasaragod Lok Adalath District Legal Services Authority on 21.9.2005 whereunder petitioner agreed to pay Rs. 2,72,000/- with interest. The order of attachment of the immovable property was made absolute. E.P. 9/2006 was filed thereafter for realisation of the amount due under the Award by sale of the attached property. This petition is filed under Article 227 of Constitution of India, challenging Ext. P3 proclamation contending that executing court did not consider Ext. P2 objection filed by the petitioner. It was contended that the property sought to be sold is worth more than Rs. 20,00,000/- and as per Ext. P3 the upset price fixed is only Rs. 2,20,000/- and therefore Ext. P3 sale proclamation is to be quashed. 2. In view of the order to be passed in this petition, I find it is not necessary, to issue notice to the respondent decree holder. W.P.(C)No. 25416 OF 2008 2 3. The learned counsel appearing for the petitioner was heard. The learned counsel contended that the executing court did not pass any specific order considering the objection filed by the petitioner and directed sale of the property fixing the upset price furnished by the respondent. It was argued that property worth more than Rs. 20,00,000/- is being sold for an upset price of Rs. 2,20,000/-. 4. Ext. P3 shows that there is encumbrance on the property as debt is due to Kunbdaje Service Co-operative Bank. It would necessarily be a liability in the property. When the order directing proclamation of sale is not produced it is not possible to say whether the executing court had considered and over ruled the objection or not. 5. Second proviso to sub rule 2 of Rule 66 of order XXI of Code of Civil Procedure provides that it is not for the executing court to enter its own value of the property. Hence executing court need not fix upset price. Executing court shall only direct to show the value of the property claimed by the decree holder as well as judgment debtor in the sale proclamation. Ext. P3 does not show that, even though in Ext. P2 objection petitioner contended that W.P.(C)No. 25416 OF 2008 3 the property is worth more than Rs. 20,00,000/-, the said value was not show. In such circumstances learned Sub Judge is to be directed to issue fresh proclamation after directing decree holder to show the value of the property shown by the judgment debtor also in the sale paper. Petition is allowed. Executing court is directed to issue fresh proclamation by directing the decree holder to show the value of the property claimed by the judgment debtor also in the sale proclamation. Executing court may also consider whether by sale of a portion of the property, the entire decree debt could be realised, as provided under Rule 54 of Order XXI of Code of Civil Procedure. M. SASIDHARAN NAMBIAR, JUDGE vkm