IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WP(C).No. 31756 of 2008(E) -------------------------- O.S.NO.240/1985 OF SUBORDINATE JUDGE'S COURT, PALAKKAD PETITIONER: --------------- UNNI MADHAVAN NAIR S/O.KIZHAKKEVEETTIL AMMINI AMMA, LEELA MANDIRAM, MALAMANMUKKIL,KATTUSSERI AMSOM, ALATHUR TALUK. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SRI.J.R.PREM NAVAZ RESPONDENT(S): --------------- SREENARAYANA INVESTMENT BY MANAGING PARTNER SHRI.V.S.CHAMUNNI,S/O. V.G.SUKUMARAN, RESIDING AT ERIMAYUR AMSOM DESOM, ALATHUR TALUK. ADV. SRI.P.R.VENKETESH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON 07/07/2009 DELIVERED THE FOLLOWING: W.P.(C).31756/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE EXECUTION PETITION DATED 15.1.2008 (E.P.NO.16 OF 2008) ALONG WITH ORDERS IN O.S.NO.240 OF 1985 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, PALAKKAD. EXT.P2: COPY OF THE EXECUTION PETITION DATED 31.8.2008 (E.P.NO.188 OF 2008) IN O.S.NO.240 OF 1985 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, PALAKKAD. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.31756 OF 2008 (E) ----------------------------------- Dated this the 7th day of July, 2009 J U D G M E N T The writ petition is filed by the judgment debtor in E.P.No.188/2008 in O.S.No.240/1985 on the file of the Sub Court, Palakkad. The order passed by the execution court for settling the proclamation of sale is impeached in the petition contending that it has not been done in accordance with the mandate covered by Order XXI Rule 66 of CPC. 2. Notice being given, the respondent/decree holder has entered appearance. A report from the court below was also called for as to the proceedings taken in the execution leading to the proclamation for sale. 3. Heard the counsel on both sides. After notice was given to the judgment debtor under Order XXI Rule 66 of CPC, to which he appeared and sought time to file counter on subsequent posting dates, he prayed for time to make payment. As no payment was made by order dated 27.9.2008, the court passed the impugned order, which reads thus: “No WPC.31756/08 2 payment. Upset price fixed Rs.7 lakhs. Proclaim and sell on 10.11.2008” and that order is impeached in the writ petition. 4. Evidently, the learned Sub Judge has not applied his mind to the materials placed in passing an appropriate order as contemplated under Order XXI Rule 66 of CPC. The court has a duty to see that the requirements of Order XXI Rule 66 of CPC are properly complied with. No action of the court or its Officers should be such as to give rise to the criticism that it was done in an indifferent or a casual way. It is preferable rather advisable for a court settling the proclamation of sale to note the principles enunciated in V.A.S.Yellappa Naidu v. G.Venugopal Naidu (AIR 1958 Madras 423) in settling the proclamation. At any rate, the order of settling the proclamation for sale should reflect that the court has applied its mind to the matters necessarily to be gone into and then it was settled. A reasoned order is not necessary but the order should reflect that the court has applied its mind in ascertaining the matters to be specified for the proclamation and it has been settled in accordance with the rule. A mere statement of fixing the upset price and then an omnibus order 'proclaim and sale' as done in the present case is far from WPC.31756/08 3 satisfactory and it indicates of non application of mind. 5. In this context, it is profitable to refer to the decisions rendered by the apex court in M/s.Shalimar Cinema v. Bhasin Film Corporation & another (AIR 1987 SC 2081) and Desh Bandhu Gupta v. N.L.Anand and Rajinder Singh ((1994) 1 SCC 131) and also of this Court in Bahuleyan v. Moosa (2006 (4) KLT 882). In all the above decisions, it has been pointed out that after the amendment of CPC in 1966, the executing court is not bound to fix its own estimate of the value of the property in the proclamation of sale, but on the same, it is desirable atleast in cases of valuable property, that the court makes its valuation and enter it in the sale proclamation. I am not expressing a view that in the present case, the court has to conduct an enquiry in that matter and state its own estimate of the property for inclusion in the proclamation. However, the court has a duty that the requirements of Order XXI Rule 66 of CPC have been properly complied with in settling the proclamation for sale, which if not followed, will amount to a material irregularity. The order of the court settling the proclamation must reflect even if it is found not necessary to state its estimate, after conducting WPC.31756/08 4 such an enquiry as to the value of the property, that the court has applied its mind to the essential facts which have a bearing on the very material question of the value of the property which could assist the purchaser in forming his own opinion. In the present case, the order passed by the court for settling the proclamation is vague and totally insufficient, which clearly show there was total absence of application of mind on the materials whatsoever placed for consideration. The impugned order is set aside and the court below is directed to pass appropriate orders under Order XXI Rule 66 of CPC, after hearing the counsel on both sides, and pursue the steps for execution of the decree in accordance with law. The court below is also alerted to expedite the proceedings as it is noticed that the execution of the decree is considerably delayed. The writ petition is disposed with the above observations. S.S.SATHEESACHANDRAN JUDGE prp WPC.31756/08 5 S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009