IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 WP(C).No. 31418 of 2009(O) -------------------------- OS.84/2002 of I ADDL.SUB COURT, KOZHIKODE .................... PETITIONERS: --------------- 1. M.C.MEENAKSHI AMMA, W/O.RAJENDRAN NAIR, SWASTHAM, AGED 51 YEARS, KANJIRAPARAMBIL (H), P.O.KOODARANHI, KOZHIKODE DISTRICT. 2. E.T.RAJENDRAN NAIR, S/O.RAGHAVAN NAIR, AGED 55 YEARS, KANJIRAPARAMBIL(H), P.O.KOODARANHI KOZHIKODE DISTRICT. BY ADV. MR.LUIZ GODWIN D'COUTH RESPONDENT: --------------- THE FEDERAL BANK LTD., MUKKAM BANK, KOZHIKODE DISTRICT, REPRESENTED BY ABRAHAM JOSEPH, PRINCIPAL OFFICER. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.31418 of 2009 - O --------------------------------- Dated this the 4th day of November, 2009 J U D G M E N T Judgment debtor in E.P.No.676 of 2004 in O.S.No.84 of 2002 on the file of the Sub Court, Kozhikode, has filed this writ petition. The decree executed in the above case is one passed for sale of the mortgage property. Judgment debtor has raised a contention after settlement of the proclamation that a portion of the property alone need be sold canvassing the provision covered by Order XXI Rule 64 of the Code of Civil Procedure. Previously before the proclamation was settled no such objection was raised was taken note by the court below to negative the objections raised by the judgment debtor. Petitioner had moved two other application also, one for appointment of a commission and another, purportedly under Order XXI Rule 69 of the Code of Civil Procedure, to stop the sale. Both the petitions were dismissed consequent to negativing of his contentions challenging the proclamation settled and the steps taken for sale of the property. 2. I heard the counsel for the petitioner. Having regard W.P.(C).No.31418 of 2009 - O 2 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. 3. From the submissions made, it is seen, the decree was passed for sale of a mortgage property. When that be so, the procedure applicable is covered by Order XXXIV of the CPC and the petitioner, if at all, he had a case that a portion of the property alone would satisfy the debt due to the mortgagor he should have canvassed that case before the trial court and an adjudication or finding thereof ought to have been called for from the trial court. It is too late in the day to raise such a plea in the execution to resist the decree holder from enjoying the fruits of the decree. There is no merit in the challenges canvassed by the petitioner to impeach the order passed by the court below. Writ petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-