IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 WP(C).NO. 9315 OF 2010(O) ------------------------------------------ AGAINST THE ORDER IN EP.354/2005 IN OS.30/1998 OF PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER(S): -------------------------- K.N.SOMSUNDARAM, PROPRIETOR-M/S.VYSAG ADVERTISERS, 'VYSAG' 92/3, VATTEKUNNM, EDAPPALLY NORTH, ERNAKULAM. BY ADV. SRI.G.KRISHNAKUMAR SRI.P.H.SHAJI (THRIKKAKARA) RESPONDENT(S): ---------------------------- 1. INDIAN OVERSEAS BANK, UDYOGAMANDAL INDUSTRIAL COMPLEX BRANCH, UDYOGAMANDAL. 2. RAJESH KERIJARIWAL S/O.FATHER'S NAME & AGE NOT KNOWN TO THE PETITIONER 36/3003(A) 'NARMADA', AZAD ROAD, KALOOR, KOCHI-17. ADV. SRI.P.B.SURESH KUMAR, SC,I.O.BANK FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF E.P. NO.354 OF 2005 IN O.S. NO.30 OF THE SUB COURT, ERNAKULAM. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 5.2.2010 IN E.P. NO.354 OF 2005 IN O.S. NO.30 OF 1998 OF THE SUB COURT, ERNAKULAM. EXHIBIT P3 TRUE COPY OF THE AUCTION NOTICE DATED 10.2.2010. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.9315 of 2010 ==================================== Dated this the 16th day of June, 2010 J U D G M E N T Respondent Nos. is served but there is no response. 2. Petitioner is one of the judgment debtors in E.P. No.354 of 2005 in O.S. No.30 of 1998 of the court of learned Principal Sub Judge, Ernakulam. For the amount due from petitioner and his proprietory concern respondent filed E.P. No.354 of 2005. Amount shown in the E.P. is Rs.2,10,757/- with future interest and costs. According to the petitioner he has paid Rs.80,000/-. Property of petitioner was brought up for sale. Petitioner filed valuation statement valuing the property at Rs.25,00,000/-. As per Ext.P2, order executing court ordered that “property identified. Conduct sale on 27.02.2010”. Exhibit P3 is the sale notice as per which upset price fixed is Rs.3,00,000/- and amount payable to the respondent is stated as Rs.2,79,826.76. Grievance of the petitioner is that without mentioning the estimated value of property given by petitioner the entire property (1.94 Ares) has been sold which violated Order XXI Rule 66 of the Code of Civil Procedure (for short, “the Code”). In violation of the said provision property was sold and purchased by respondent No.2 which W.P(C) No.93165 of 2010 -: 2 :- according to the learned counsel is a nullity. Learned counsel states that petitioner is prepared to pay amount due under the decree. He requests that sale may be set aside and petitioner may be permitted to pay the amount in installments. Learned counsel for respondent No.1 would contend that there was an order for sale of one cent of property referred to in the proclamation schedule which was challenged by respondent No.1 in W.P(C) No.6121 of 2008. This Court set aside the order and directed to proclaim and sell the entire property for the amount due under the decree. 3. So far as challenge to Exts.P2 and P3 and consequent sale on the ground that entire property need not have been sold is concerned, I am afraid that contention cannot stand in the light of statement made by leaned counsel for respondent No.1 that in W.P.(C) No.6121 of 2008 this Court had permitted sale of the entire property. 4. Then the question is whether Rule 66 of Order XXI of the code has been violated. As per second proviso to Rule 66 though it is not necessary for the court to enter in the proclamation of sale its own estimate of the value of the property, proclamation shall include the estimate, if any given by either or both of the parties. It is not disputed that petitioner had filed W.P(C) No.93165 of 2010 -: 3 :- valuation statement suggesting value of the property as Rs.25,00,000/-. In that situation the second proviso to Rule 66 referred to above required to mention value of property estimated by the petitioner also in the proclamation schedule and notice. In so far as that mandatory provision is not complied Exts.P2 and P3 cannot be sustained and the consequent sale of the property is vitiated. As such Exts.P2 and P3 and the consequent sale are liable to be set aside for the said reason and I do so. 5. Learned counsel has undertaken to deposit Rs.75,000/- (Rupees Seventy five thousand only) in the executing court for payment to respondent No.1. On the question whether petitioner is entitled to pay the balance amount due in installments I leave that matter to the executing court to decide after hearing petitioner and respondent No.1. In view of the order I am proposing to pass respondent No.2 is entitled to get whatever amount due to him as provided under the Rules and amount if any payable by petitioner shall be deposited by him in the executing court as that court directs. Resultantly, Writ Petition is allowed in the following lines: (i) Exhibits P2 and P3 and the consequent sale of property are set aside. W.P(C) No.93165 of 2010 -: 4 :- (ii) Executing court is directed to incorporate value of property given by petitioner also in the proclamation schedule before the property is proclaimed for sale. (iii) Petitioner shall deposit in the executing court Rs.75,000/- (Rupees Seventy five thousand only) for payment to respondent No.1 within three weeks from this day. (iv) Petitioner's request for payment of the balance amount in installments can be raised in the executing court and if any such request is made executing court shall consider the request and pass appropriate orders after hearing petitioner and respondent No.1. (v) Amount if any payable by the petitioner to respondent No.2 pursuant to setting aside of the sale and as provided under the Rules shall be paid by petitioner and he shall deposit the said amount in the executing court as directed by that court. THOMAS P. JOSEPH, JUDGE. vsv