IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 WP(C).No. 29947 of 2009(O) -------------------------- AGAINST THE ORDER DATED 28/08/2009 IN EP.56/2007 IN OS.135/2000 of MUNSIFF COURT,KAYAMKULAM .................... PETITIONER: --------------- GOPALAKRISHNAN, S/O.SANKARAN, KOYPPALLY PADEETTATHIL, PRAYAR VADAKKUM MURI, PUTHUPPALLY VILLAGE, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER REMA, W/O.GOPALAKRISHNAN, KOYPPALLY PADEETTATHIL, PRAYAR VADAKKUM MURI, PUTHUPPALLY VILLAGE. BY ADV. MR.P.SREEKUMAR MR.K.S.MANU (PUNUKKONNOOR) RESPONDENT: --------------- NISSAM, S/O.KOYAKUTTY KANNUMATHUKIZHAKKATHIL, PRAYAR VADAKKUM MURI, PUTHUPPALLY VILLAGE, KAYAMKULAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.29947 of 2009 - O --------------------------------- Dated this the 28th day of October, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To set aside the Exhibit P2 order and P3 proclamation for sale of immovable property in the greater interest of justice. ii) To declare that the petitioner was not served with the notice as contemplated in Order XXI Rule 66(2) and hence Ext.P3 proclamation for sale is void.” 2. Petitioner is the judgment debtor in O.S.No.135 of 2000 on the file of the Munsiff Court, Kayamkulam. The decree executed in the above suit was one passed in a suit for money. Petitioner is a serving soldier in the Indian Army entitled to protection under the Indian Soldiers Litigation Act, 1925 in the matter of proceedings before the civil court, is his case. In the execution proceedings no notice under Order XXI Rule 66 was served on the petitioner and so much so further steps taken for settling the proclamation of sale of his property are patently illegal, according to the petitioner. Publication of notice under W.P.(C).No.29947 of 2009 - O 2 Order XXI Rule 66 was effected by the decree holder in a local daily and it was treated as sufficient by the execution court for settling the proclamation of sale of his property is the further case of the petitioner. Petitioner therefore seeks for quashing Ext.P2 order passed by the court below settling the proclamation of his property for sale and Ext.P3, the proclamation published for such sale, by filing this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondent is necessary and it is dispensed with. 4. From the submissions made and also the statements made in the writ petition, it is seen, that the petitioner resisted the suit claim by filing a written statement. He did not canvass for the protection under the Indian Soldiers Litigation Act, 1925, at any stage before the trial court or execution court. Needless to point out that the protection covered under that Act to a W.P.(C).No.29947 of 2009 - O 3 soldier is not conferred on every soldier, but, soldiers serving on special condition as contemplated under Section 3 of that Act. So long as the petitioner has not applied before the execution court as to his entitlement of protection under the Act, I need not go into that aspect in the writ petition though it has been canvassed as a ground to impeach the propriety and correctness of the orders passed by the execution court. It is also noticed that notice under Order XXI Rule 66 was served on the wife of the petitioner. She thereupon filed a petition before the court that she was not competent to receive notice on behalf of her husband and, later, under order of the court the decree holder effected substituted service by publication. The present writ petition has been filed by the wife of the petitioner as his power of attorney. She has also filed an affidavit as his agent in the petition to substantiate the grounds raised as to the entitlement of the petitioner for the reliefs canvassed. Power of attorney executed by the petitioner in favour of the wife was handed over to me by his counsel which on perusal disclose that it was executed as early on 5.2.2003 and the wife of the petitioner had been W.P.(C).No.29947 of 2009 - O 4 appointed as his power of attorney to act on his behalf in the trial, appeal or execution in respect of O.S.No.135 of 2000 which is involved in the present writ petition. When that be the case, previous stand taken that she was not competent to take notice on behalf of the husband was incorrect. The present writ petition filed by the petitioner through her as the power of attorney, impeaching the steps taken for sale of his property on the ground that notice was not duly served in settling proclamation for sale deserve to be taken note of only for its rejection. I do not find any merit in the writ petition, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-