IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 CRP.No. 859 of 2003() --------------------- AGAINST THE ORDER DATED 25/02/2003 IN EP. 11 /1995 IN OS.49/1988 of SUB COURT,KOTTARAKKARA .................... REVISION PETITIONER(S): JUDGMENT DEBTOR NO.1/1ST DEFENDANT: ---------------------------------------------------------------------------------------------------------- * P.N.SIVARAJAN, PRINCE HOUSE, MISSION KUNNU, AZHANTHAKUZHY, KADACKAL VILLAGE, KOTTARAKKARA. ( D I E D). *ADDL.REVISION P2 TO P6 IMPLEADED: P2. K.RADHAMONEY, AGED 59, WIDOW OF P.N.SIVARAJAN, PINCY'S HOUSE, MISSIONKUNNU, NILAMEL, KADAKKAL VILLAGE, KOLLAM DISTRICT. P3. R.S.PINCY, AGED 37, KULATHADI VEEDU, KARIMKULAM, PUTHIYATHURU P.O., THIRUVANANTHAPURAM. P4. R.S.SIPINSY, AGED 35, PINCY'S HOUSE, MISSIONKUNNU, NILAMEL, KADAKKAL VILLAGE, KOLLAM DISTRICT. P5. LACKSY, AGED 33, SARAJ MANDIRAM, NILAMEL P.O., KOLLAM DISTRICT. P6. PINS RAJ, AGED 30, PINCY'S HOUSE, MISSIONKUNNU, NILAMEL, KADAKKAL VILLAGE, KOLLAM DISTRICT. *ADDL.P2 TO P6 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED P1 AS PER ORDER DTD. 21/06/06 IN I.A.NO.1480/06. BY MR.V.N.ACHUTHA KURUP, SENIOR ADVOCATE, BY ADV.MR.K.HARILAL, SMT.BINDU SREEKUMAR. Kss ..2/- ...2.... CRP.NO.859/2003 RESPONDENT(S): DECREE HOLDER & JUDGMENT DEBTOR NO.2/ PLAINTIFF & 2ND DEFENDANT: ------------------------------------------------------------------------- 1. THE FEDERAL BANK LTD., REP. BY ITS KADACKAL BRANCH MANAGER. 2. RAJAN, PALAMON MANGALATHU PUTHEN VEEDU, KADACKAL VILLAGE AND MURI, KOTTARAKKARA TALUK. R1 BY ADV. MR.N.P.SAMUEL THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J ------------------------------------- C.R.P No.859 OF 2003 -------------------------------- Dated this the 22nd day of February 2010 ORDER Revision petitioner is the judgment debtor in E.P No.11 of 1995 in O.S No.49 of 1988 on the file of Sub Court, Kottarakara. After filing of the revision, the petitioner had passed away and his legal heirs have been impleaded as additional petitioners 2 to 6. The respondents in the petition are the decree holder and the second judgment debtor respectively. Decree being executed is one passed in favour of the 1st respondent bank, for sale of the mortgage property, to realise the amount due from the judgment debtors. In execution, steps were taken for settling the proclamation and its publication. Objections were filed by the 1st judgment debtor in which among other contentions it was canvassed that the entire mortgage property need not be sold for realisation of the decree debt, that the deposit in the name of the 1st judgment debtor in the decree holder bank can be adjusted and set off towards the decree debt, and that the shares of the judgment debtor in the 1st respondent bank which had been attached in the suit can also be brought to sale for realising the dues. Grievance espoused in the revision is that without adverting to the objections canvassed, after a number of postings, the court below straight away passed an order for C.R.P No.859 OF 2003 Page numbers settling the proclamation. Objections canvassed as indicated above have not been considered and a mechanical order was passed by the court for proclamation and publication for sale of property, is the cause canvassed in this revision. 2. Notice given, the decree holder has entered appearance. 3. I heard the counsel on both sides. The learned counsel for the petitioner has handed over to me a copy of the B diary in the execution proceedings. The entries in the B diary indicate that though the objections raised against the settlement of proclamation were heard on 05/08/2002, execution court adjourned the proceedings from time to time and then on 30/10/2002 directed for production of encumberance certificate. After several postings, on 25/02/2003, noticing that encumberance certificate had been produced, the court has ordered for sale of the property. Needless to say that the whole proceedings taken by the court and the orders passed as indicated above are patently erroneous. What is seen is that without settling the proclamation and its publication on production of encumberance certificate, the court has straight away ordered for sale of the property. A sale without settling the proclamation and publication is not a material irregularity but that would render the sale itself a nullity. The impugned order is liable C.R.P No.859 OF 2003 Page numbers to be set aside, and I do so. I direct the court below to consider the objections raised by the judgment debtor and pass appropriate orders in the execution proceedings in accordance with law. The court below is directed to pass orders on settlement of proclamation and its publication after hearing both sides within a period of four weeks from the date of receipt/production of a copy of this judgment. In case the objections are found not tenable and the sale of the mortgage property has to be proceeded with, the execution proceedings shall be completed as expeditiously as possible, at any rate, within a period of six months. Subject to the above directions, the writ petition is disposed. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// P.A TO JUDGE vdv C.R.P No.859 OF 2003 Page numbers