IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 WP(C).No. 36752 of 2008(A) AGAINST THE ORDER IN EP.NO.55/2006 IN OS.9/2004 of SUB COURT,KATTAPPANA PETITIONERS: --------------- 1. KESAVAN NARAYANAN, S/O. KESAVAN, AGED 70 YEARS, CHITTADIYIL HOUSE, KALTTHOTTY P.O., AYYAPPANKOIL VILLAGE, IDUKKI DISTRICT. 2. C.N. MOHANDAS, S/O. KESAVAN NARAYANAN, AGED 37 YEARS, CHITTADIYIL HOUSE, KALTTHOTTY.P.O., AYYAPPANKOIL VILLAGE, IDUKKI DISTRICT. 3. THANKAMMA NARAYANAN, W/O. NARAYANAN, AGED 60 YEARS, CHITTADIYIL HOUSE, KALTTHOTTY P.O., AYYAPPANKOIL VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.V.A.AJAI KUMAR RESPONDENTS: --------------- 1. THE FEDERAL BANK LIMITED, KANCHIYAR BRANCH, IDUKKI REPRESENTED BY ITS BRANCH MANAGER. 2. C.N. CHANDRASEKHARAN, S/O. KESAVAN NARAYANAN, CHITTADIYIL HOUSE, KALTTHOTTY P.O., AYYAPPANKOIL VILLAGE, IDUKKI DISTRICT. R1 BY ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 36752 OF 2008 A ------------------------------------------------------ Dated this the 23rd March, 2009 JUDGMENT I am disposing of this Writ Petition granting relief to the petitioners, in spite of the fact that they have not disclosed the true and correct facts in the Writ Petition. When the Writ Petition came up for hearing before a learned single Judge, it was thought that the correct facts are not stated in the Writ Petition. A report was called for from the lower court. The learned Subordinate Judge filed a report dated 31.12.2008. The true facts are revealed in that report. 2. The petitioners are judgment debtors 1, 2 and 4 in E.P.No.55 of 2006 in O.S.No.9 of 2004, on the file of the Sub Court, Kattappana. The first respondent Bank is the decree holder. E.P.No.55 of 2006 was filed for realisation of a sum of Rs.6,97,229/-. Two items of properties were shown in the proclamation schedule. One item, having an extent of one acre and seventy cents, was ordered to be sold. The sale was to take place on 30.1.2008. There were no bidders on that date. The judgment debtors filed E.A.No.39 of 2008 under Rule 83 of Order XXI of the Code of Civil Procedure to permit them to conduct a private sale. That petition was allowed, in spite of the fact that the properties were mortgaged in W.P.(C) NO.36752 OF 2008 :: 2 :: favour of the Bank. In fact, Rule 83 had no application in such a case. Still, an order was passed permitting the petitioners to sell the property. The judgment debtors could not conduct the sale. Accordingly, E.A.No.39 of 2008 was closed on 31.5.2008. 3. Thereafter, as directed by the Court, parties produced statements. As per the statement dated 26.8.2008 filed by the decree holder Bank, the amount outstanding on that date was Rs.4,14,286/-. The property was proclaimed for sale. 4. The case of the petitioners is that on receipt of Rule 66 notice in the Execution Petition, the petitioners appeared before Court and filed detailed objection dated 17.1.2007. They stated that item No.1 having an extent of 3.09 Acres, consists of a pucca residential building, wherein the first petitioner is residing with his family. According to the judgment debtors, the house is worth Rs.5 lakhs. There are other buildings in the property. According to the judgment debtors, the market value of the said property is Rs.5,000/- per cent. Item No.2, which was sought to be sold, has an extent of 1.70 Acres in which another residential building is there. According to the judgment debtors, that building is worth Rs.2 lakhs. The market value of that item of property is Rs.10,000/- per cent, according to the judgment debtors. They contended that it is not necessary to sell the W.P.(C) NO.36752 OF 2008 :: 3 :: entire extent of property for realisation of the decree amount. It is stated by the petitioners that the decree holder was directed to file a fresh draft sale proclamation and the Execution Petition was posted to 17.9.2008. The decree holder produced the draft sale proclamation only on 14.11.2008. The petitioners also contended that without giving them an opportunity to file objection, the executing court settled the proclamation and ordered the property to be sold on 15.12.2008. 5. The petitioners have not stated in the Writ Petition that they were allowed to sell the property under Rule 83 of Order XXI of the Code of Civil Procedure and that they did not comply with the same. If it is a mortgage decree, the judgment debtors are not entitled to contend that the property should be sold in lots. The contention in the Writ Petition is that sale of the entire extent is not necessary for realisation of the decree amount. 6. The report filed by the learned Subordinate Judge would indicate that the proclamation was issued and a direction was issued to the decree holder to advertise the same in Mathrubhoomi Daily newspaper. The property was ordered to be sold on 15.12.2008. At that time, the judgment debtors submitted that the proceedings were stayed by the High Court. Therefore, the sale was adjourned. W.P.(C) NO.36752 OF 2008 :: 4 :: 7. Learned counsel appearing for the decree holder, to a query made by the Court, submitted that the value of the residential buildings was not shown in the proclamation. Though the value as suggested by both parties was ordered to be included in the sale proclamation, the sale proclamation is incomplete as the value of the buildings are not separately shown. A sale proclamation is intended to convey to the intending bidders the necessary details as to the nature and value of the property sought to be sold. The proclamation is for sale of a large extent of property. The property is very valuable, according to the judgment debtors. Therefore, it is necessary that the sale proclamation should give an idea to the intending bidders as to the value and other details of the property. Or else, there would be a chance of the property being sold for a low price. Though the judgment debtors have not discharged their liability under the decree, that does not mean that they should lose their property for an amount which is far below the reasonable value of the property. For that purpose, it is necessary to incorporate all the necessary details in the sale proclamation. The decree holder has assured that the correct details will be furnished before the executing court. The judgment debtors would be entitled to submit a statement showing all the relevant details to be included in the sale proclamation. The judgment debtors also would be entitled to object to any statement W.P.(C) NO.36752 OF 2008 :: 5 :: made by the decree holder and point out the correct facts. This is not to provide an opportunity to the judgment debtors to drag the proceedings as they like, but only to ensure that they do not lose their property for a low price. The executing court shall proceed with the execution in the manner indicated above after giving an opportunity to both parties to substantiate their contentions. At the same time, it is made clear that both parties will not protract the proceedings before the court below. 8. It is submitted that the judgment debtors have deposited Rs.One lakh as per the interim order passed by this Court. The decree holder would be entitled to withdraw the same. The decree holder shall also file a fresh statement showing the current balance amount due. The Writ Petition is allowed in part. (K.T.SANKARAN) Judge ahz/