IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 WP(C).No. 25343 of 2009(O) -------------------------- AGAINST THE ORDER IN EP. 306 /2004 IN OS.184/2001 of SUB COURT, MUVATTUPUZHA .................... PETITIONER(S): --------------- JOHN AMBATTU, S/O. XAVIER, AGED 59, AMBATTU HOUSE, MEKKADAMBU, VALAKOM, ERNAKULAM. BY ADV. SRI.K.R.VINOD SRI.K.P.WILSON (KOTHAMANGALAM) RESPONDENT(S): --------------- MATHEW, S/O. SEBASTIAN, VELLAMARUTHAKKAL HOUSE, ALLAPRA P.O., PERUMBAVOOR. ADV. SRI.GRASHIOUS KURIAKOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 25343/09) PETITIONER'S EXTS.: EXT.P1: COMPUTER COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT DATED 2.2.2009 IN W.P.C.NO.35258/08. EXT.P2: TRUE COPY OF THE STATEMENT OF OBJECTION FILED BY THE PETITIONER AND THE DRAFT SKETCH OF THE PROPERTY PROPOSED TO BE SOLD. EXT.P3: PHOTOCOPY OF THE ORDER OF THE SUB COURT, MUVATTUPUZHA DATED 20.7.2009. EXT.P4: TRUE COPY OF THE SALE PROCLAMATION AFFIXED AT THE PREMISES OF THE PETITIONER. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.25343 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 7th October, 2009 JUDGMENT The Writ Petition is filed seeking the following relief: “To call for the records leading to Exhibit P3 order and Exhibit P4 sale proclamation and set aside the Exhibit P3 and Exhibit P4.” 2. Petitioner is the judgment debtor in E.P.No.306 of 2004 on the file of the Sub Court, Muvattupuzha. P3 order passed by the learned Sub Judge is challenged in the Writ Petition contending that there was no application of mind in settling the proclamation and ordering sale of the attached property. 3. Notice being given, the respondent decree holder has entered appearance. I heard the counsel on both sides. Previously, a proclamation was settled for sale of the entire attached property is not disputed. However, on the basis of the objection raised by the judgment debtor, fresh proclamation was settled in respect of five cents of property as that alone was found necessary to satisfy the decree debt by the execution court. That order, as indicated above, was passed by the court after affording sufficient opportunity to the judgment debtor to avoid the sale acting upon his representation that W.P.C.No.25343/09 - 2 - he would tender the entire decree debt. But the representation remain unhonoured. While settling the proclamation, the upset price was omitted to be fixed by the court and that necessitated passing of P3 order. Under P3 order, the court fixed the upset price directing for fresh proclamation and sale. It was not a case of incorporating the upset price in the previous proclamation, but settling of fresh proclamation incorporating the upset price and its publication before proceeding with the sale. Apparently, there is no illegality or impropriety in P3 order passed by the execution court and the challenge raised against P3 order is devoid of any merit. The court below had been directed to adjourn the sale subject to the condition of the judgment debtor depositing the sum ordered by this court while admitting the Writ Petition. The amount ordered has not been deposited. That also is a circumstance to be taken note of. The Writ Petition lacks merit and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE