IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 WP(C).No. 10473 of 2009(O) -------------------------------------- EP 112/2006 IN PLC.3/2005 of ADL.SUB COURT, THALASSERY .................... PETITIONER(S): ---------------------- V.K. GOWRI AMMA, D/O. PARVATHY AMMA, AGED 78 YEARS, KAKKORATTU HOUSE, ANIYARAM P.O., PERINGALAM, THALASSERRY, KANNUR DIST. BY ADV. MR.K.MOHANAKANNAN SMT.A.R.PRAVITHA RESPONDENT(S): ------------------------ T.M. RAMAKRISHNAN, S/O. KAMARAN NAMBIAR, “GREESHMAM”, KOODALI AMSOM, KANNUR DIST. BY ADV. MR.P.U.SHAILAJAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 10473/2009-O APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT DATED 12/11/2008 IN W.P.(C). NO. 28007 OF 2008 OF THIS HONOURABLE COURT. EXT.P2: COPY OF THE E.P. NO.112 OF 2006 IN PLC NO.3 OF 2005 ON THE FILE OF THE COURT OF THE ADDITIONAL SUB COURT, THALASSERRY. EXT.P3: COPY OF THE DRAFT PROCLAMATION ISSUED BY THE COURT OF THE ADDITIONAL SUBORIDINATE JUDGE, THALASSERRY. EXT.P4: COPY OF THE OBJECTION FILED BY THE PETITIONER IN E.P. NO.112 OF 2006 ON THE FILE OF THE COURT OF THE ADDITIONAL SUBORIDINATE JUDGE, THALASSERRY. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.10473 of 2009 - O --------------------------------- Dated this the 1st day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: “i) To issue a writ of certiorari or any other appropriate writ, order or direction, to call for the records leading to Ext.P3 and quash the same. ii) To issue a writ, order or direction, directing the court of the Additional Subordinate Judge, Thalassery to sale that much extent of land (25 cents) for realisation of the balance amount from out of the property schedule in Ext.P3 sale proclamation. iii) To issue a writ of mandamus or any other appropriate writ, order or direction, permitting the petitioner to pay the balance decree debt in instalments and to avert the sale in respect of the petitioner's property. iv) To grant the cost of these proceedings to the petitioner'. 2. Petitioner is the judgment debtor in E.P.No.112/2006 in P.L.C.No.3/2005 on the file of the District Legal Service Authority, Thalassery. The award passed before that Adalat in W.P.(C).No.10473 of 2009 - O 2 terms of the settlement arrived between the parties stipulated that the petitioner has to pay a sum of Rs.4 Lakhs, which shall be paid in instalments, Rs.2 Lakhs within one month and the remaining Rs.2 Lakhs within an year. The award amount carried interest at the rate of 6% per annum. Though some amounts were paid, it is not in dispute that the instalments were defaulted. After the default of the first instalment for payment of Rs.2 Lakhs within a period of one month, the decree holder filed E.P.No.112/2006 and in respect of the default of the second instalment of Rs.2 Lakhs, he filed another E.P as E.P.No.36/2006. In E.P.No.36/2007, execution court attached the property of the judgment debtor having an extent of 1 acre 28 cents and proceeded with the steps for its sale. The judgment debtor preferred a writ petition before this Court as W.P.(C). No.28007/2008 and this Court by Ext.P1 judgment directed that a portion of the property limited to an extent of 25 cents alone need be sold at the first instance and if the decree debt is not realised by such sale, then alone rest of the property as required be brought to sale. In the other E.P.No.112/2006 also, the decree holder moved for sale of the whole property of 1 acre 28 W.P.(C).No.10473 of 2009 - O 3 cents and a proclamation of sale was settled. At this stage, the judgment debtor has approached this Court with the above writ petition invoking its supervisory jurisdiction under Article 227 of the Constitution of India submitting that sale of the whole property is not warranted and a portion alone will be sufficient to realise the decree debt. 3. I heard the counsel on both sides. 4. Having regard to the submissions made and taking note of the facts and circumstances involved, I find that the steps for sale proceeded by the execution court for sale of the whole property without adverting to the mandate under Order XXI Rule 64 CPC which ordains a court to examine and consider whether the whole or a portion of the property is sufficient to realise the decree debt, cannot be sustained. Judgment debtor is shown to be a lady aged 78 years. According to the learned counsel for the petitioner she is suffering from various ailments and also under continuous medical treatment, and as such prevented from canvassing effectively before the execution court that sale of a portion of her property is sufficient to discharge the decree debt. Whatever that be, an execution court cannot abstain its W.P.(C).No.10473 of 2009 - O 4 jurisdiction in examining the question whether the whole property attached is liable to be proceeded against for realisation of the decree debt. Any order passed by the court without examining that question will amount to violation of the legislative mandate under Order XXI Rule 64 CPC. In the facts and circumstances involved, it appears that sale of a portion of the property limited to an extent of 25 cents, similar to the direction under Ext.P1 judgment, has to be resorted first and not the entire property. so much so, quashing Ext.P3 proclamation of sale and all further proceedings thereof, the execution court is directed to issue fresh proclamation limiting the sale to an extent of 25 cents of property, other than the 25 cents proceeded for sale in the other E.P., of the judgment debtor, and in case the sale thereof is found incapable of realising the decree debt, then to proceed with the rest of the property. The writ petition is allowed as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-