IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 WP(C).No. 6121 of 2008(D) ------------------------------------- AGAINST THE ORDER IN EP 354/05 IN OS.30/1998 OF PRINCIPAL SUB COURT,ERNAKULAM. .................... PETITIONER: ------------------- INDIAN OVERSEAS BANK, UDYOGAMANDAL, REPRESENTED BY ITS SENIOR MANAGER, IYPE VARGHESE. BY ADV. SRI.GEORGE VARGHESE. RESPONDENT: ---------------------- K.N.SOMASUNDARAM, PROPRIETOR, M/S.VYSAG ADVERTISERS, RESIDING AT `VYSAG', 92/3, VATTEKKUNNAM, EDAPPALLY NORTH. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 6121 OF 2008 = = = = = = = = = = = = = = = Dated this the 21st day of February, 2008. J U D G M E N T This writ petition is preferred against the order of the Prl. Subordinate Judge, Ernakulam thereby there is a direction to sell one cent of property. Admittedly the plaintiff has obtained a decree for realisation of an amount of Rs.2,63,240/- by sale of the property mortgaged. It is contended that according to the judgment debtor the value of the property is 5 lakhs per cent whereas according to the decree holder it is Rs.75,000/- per cent. The Court below directed one cent of property to be sold and thereafter if the decree is not satisfied to proceed with the other property. I am afraid that such a decision cannot be arrived at by the Court below for the reason being a mortgage decree the executing Court has no power to split up the property. It is held by this Court in Dhanalakshmi Bank Ltd. Divakaran (2002 (2) KLT 231) that W.P.C 6121 OF 2008 -:2:- “What is to be noted here is that it is given to the Court passing the preliminary decree for sale, to order either the sale of the whole of the mortgaged property or the sale of the sufficient part of the mortgaged property. Once this power of directing sale either of the whole or of the portion is exercised by the Court which passes the decree, it is clear that the executing Court has no power to go behind that direction in the decree and to alter either the mode of sale ordered or to consider whether anything less than what is directed by the decree to be sold, need alone be sold.” 2. Therefore the order under challenge requires interference and therefore it is set aside. The Court is directed to conduct a fresh enquiry fixing the value of the property and then direct further sale proceedings to be held under Order 21 Rule 72 or under Order 21 Rule 72(A) as situation demands. 3. It is submitted that the execution petition is dismissed for non taking of steps. Since the order directing W.P.C 6121 OF 2008 -:3:- the sale itself is illegal, the execution petition is to be restored to file and after giving notice to both sides matter be disposed of in accordance with law. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-