IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 WP(C).No. 22376 of 2008(L) -------------------------- AGAINST THE ORDER IN EP 19/2000 IN OS.317/1997 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER: ------------ VANAJA, W/O.LATE RAJENDRAN CHOZHYAKATTIL, PATTANCHERRY, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW RESPONDENTS: ------------- 1. O.R.MANI, S/O.RAMAN, ALINGAL VEEDU, ODAVAGODU, MUNDUR AMSOM PALAKKAD TALUK. 2. KASU, W/O.PAZHANANKUTTY, CHOZHYAKATTIL, PATTANCHERRY, CHITTUR TALUK, PALAKKAD DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.22376 of 2008 ------------------------------- Dated this the 24th July, 2008. J U D G M E N T First judgment debtor in O.S.No.317 of 1997, on the file of Sub Court, Palakkad, has filed this petition under Article 227 of the Constitution of India, challenging Ext.P4 order passed by learned Sub Judge on 1.7.2008, fixing the upset price as Rs.6 lakhs and directing proclamation and sale on 30.7.2008. Petitioner had earlier filed C.R.P.No.626 of 2002 before this Court, which was disposed under Ext.P1 order, dated 7.11.2002. Under Ext.P1 order, this Court directed executing court to show the value of each item stated by the judgment debtor in the sale proclamation. Ext.P4 order was passed fixing the upset price. Ext.P3 sale proclamation shows that the value of the property shown by the judgment debtor in Ext.P3 objection was not shown in the sale proclamation. 2. In the light of the order to be passed in this writ petition, I do not find it necessary to issue notice to the decree holders. W.P.(C) No.22376 of 2008 2 3. As provided under second proviso to sub-rule (2) of Rule 66 of Order XXI of Code of Civil Procedure, though executing court need not enter its own estimate of the value of the property in the proclamation, the proclamation shall include the estimate, if any, given by the judgment debtor. Inspite of Ext.P1 order passed by this Court directing the executing court to show the value of the property claimed by the judgment debtor, Ext.P2 does not show same. Moreover, under sub-rule (2) of Rule 66 of Order XXI of Code of Civil Procedure, it is not the duty of the executing court to fix the upset price as has been done under Ext.P4. Ext.P4 order is quashed. Executing Court shall also consider whether by selling a portion of the decree schedule properties, decree holders can realise the entire decree debt, and if so, executing court shall restrict the sale of only that portion of the property. Learned Sub Judge is directed to issue fresh proclamation and direct sale of the property, after directing the decree holder to show the value of the property, as claimed by the petitioner-judgment debtor in Ext.P3 objection. Writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.