IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 WP(C).No. 26554 of 2009(O) --------------------------------------- [OS.NO.598/2002 OF SUB COURT,KOCHI] .................... PETITIONER: ------------------- C.F.JOHNSON, AGED 59 YEARS,S/O.LATE C.A.FRANCIS, CHUNGATH HOUSE,PANAYAPPILLY,KOCHI. BY ADVS. MR.A.T.ANILKUMAR, SMT.V.SHYLAJA. RESPONDENTS: ------------------------ 1. M/S.FAMILY PLASTIC & THERMOWARE, PLOT NO.54,INDUSTRIAL DEVELOPMENT PLOT, MONIVILLA,KULATHOOR,THIRUVANANTHAPURAM, REP.BY ITS PARTNER. 2. DANIEL A.FERNANDEZ, S/O.LATE ALIAS FERNANDEZ,JASINTHA,PLOT 42, SHORE-E-PUNJAB,CO-OP.HSG SOCIETY,MAHAKALI CANES ROAD,ANDHERI(E),RESIDING AT LILLY VILLA, KADAKKOM,CHIRAYINKIL,THIRUVANANTHAPURAM. 3. FRANCIS D.FERNANDEZ, S/O.LATE ALIAS FERNANDEZ,JASINTHA,PLOT 42, SHORE-E-PUNJAB,CO-OP.HSG SOCIETY,MAHAKALI CANES ROAD,ANDHERI(E),RESIDING AT LILLY VILLA, KADAKKOM,CHIRAYINKIL,THIRUVANANTHAPURAM. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/09/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.26554 OF 2009 -------------------------- Dated this the 22nd day of September 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the entire records leading to Ext.P7, P8 and P9 orders and quash the same by issuing a writ of certiorari, or any other appropriate writ, order or direction. ii) Issue a writ of mandamus or any other appropriate writ order or direction and thereby direct the Sub Court, Kochi to allow the Ext.P5 and P6 applications and allow the petitioner to examine the Tahsildar, Kochi Taluk before accepting Ext.P3 report and remit back the same to official for conducting proper valuation as per law. iii) Grant such other reliefs which are just and necessary in the interest of justice. W.P.(C).No.26554 OF 2009 Page numbers 2. Petitioner is the third judgment debtor in E.P No.100 of 2005 in O.S No.598 of 2002 on the file of the Sub Court Kochi. The decree executed is one passed in a suit for money in favour of the first, second and third respondents. In the execution proceedings, the decree holder applied for ascertaining the value of the suit property through the Tahsildar. That application being allowed by the court, after due enquiry, the Tahsildar, Kochi Taluk filed the report that the property of the judgment debtors attached in the execution proceedings has centage value of Rs.1,45,039/-. Petitioners / judgment debtors filed objections and applied for seeking an opportunity to examine the Tahsildar to impeach his valuation report. The execution court dismissed that application vide Ext.P9 order. While dismissing the application moved by the judgment W.P.(C).No.26554 OF 2009 Page numbers debtor, the court below taking note of the valuation report of the Tahsildar directed the decree holder to file a draft sale proclamation showing the value as given by the Tahsildar fixing the date for filing such application. The challenge raised in the writ petition is against the dismissal of the application of the judgment debtors as aforementioned and also the directions given by the execution court in Ext.P9 order. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to Ext.P9 order , I find no notice to the respondents is necessary and it is dispensed with. The learned counsel for the petitioner submitted that the directions given by the court cause reasonable apprehension in the mind of the petitioner that he would be deprived of an W.P.(C).No.26554 OF 2009 Page numbers opportunity to canvass whatever circumstances in his favour while settling a proclamation for sale of the property as contemplated under Order 21 Rule 66 of the Code of Civil Procedure. True, Ext.P9 order passed by the court give raise to such an apprehension and it cannot be brushed aside. I make it clear that, whatever be the directions given by the court under Ext.P9 order to the decree holder for submitting of the draft sale proclamation showing the valuation in consonance with the report of the Tahsildar, it will no way affect the right of the judgment debtors in presenting whatever circumstances available to them for settling a proper proclamation for sale of the attached property. Needless to point out, the court has to apply its mind not only with respect to the value of the property that is to be brought to sale but also the extent of the property that is required for the sale to satisfy the decree while W.P.(C).No.26554 OF 2009 Page numbers settling the proclamation for sale of the property. It need not be stated that the court is not bound by the valuation shown by the Tahsildar which of course has got some presumptive value as to its correctness. While settling the proclamation for sale of a property the court has to form its own independent opinion not only on the question of valuation but also on all matters necessary for proper settling of proclamation for sale and its publication. After the amendment to Order 21 Rule 66 of the Code of Civil Procedure the court is not expected to having a roving enquiry on the valuation of the property to be brought to sale. It need only to state the value given by the decree holder if it is found acceptable, and also that canvassed by the judgment debtors in the proclamation. So it was unnecessary for the court, before proceeding with the enquiry under Order 21 Rule 66 of the Code of Civil Procedure for W.P.(C).No.26554 OF 2009 Page numbers proclamation for sale of the property, to call for a report from the Tahsildar. Execution court is directed to take note of the observations made above and settle the proclamation for sale and publish it, after hearing the counsel on both sides and giving an opportunity to the judgment debtor to canvass whatever circumstances available in his favour in settling the proclamation for sale. Subject to the above observations, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv