IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 WP(C).No. 9096 of 2009(O) AGAINST THE ORDER IN EP 789/08IN EP 272/03 IN OS.91/2001 of I ADDL.SUB COURT, KOZHIKODE PETITIONER: --------------- M/S.MUTHOOT VEHICLE AND ASSETS FINANCE LTD. HAVING REGISTERED OFFICE AT KURIAN TOWERS, OPPOSITE SARITHA THEATRE, BANERJI ROAD, ERNAKULAM REPRESENTED BY THE POWER OF ATTORNEY HOLDER, BABY SUJATHA, LEGAL OFFICER, AGED 30 YEARS, MUTHOOT ASSETS ANF FINANCE LTD., ERNAKULAM, COCHIN. BY ADV. SRI.C.S.MANILAL RESPONDENTS: --------------- 1. DR.MOHAMMED MEDICAL TRUST, REPRESENTED BY PRESIDENT TRUSTEE, KOYA'S HOSPITAL, CHERUVANOOR, FEROKE, CALICUT. 2. DR.M.ASSAN KOYA, S/O.MOHAMMED, KOYA'S HOSPITAL, CHERUVANOOR, FEROKE, CALICUT. 3. DR.C.V.SALIM, S/O.KADIRI HAJI, KOYA'S HOSPITAL, CHERUVANOOR, FEROKE, CALICUT. 4. MRS.MARIYA, W/O.M.ASSEN KOYA, KOYA'S HOSPITAL, CHERUVANOOR, FEROKE, CALICUT. BY ADV. SRI.A.A.ABUL HASSAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/04/2009, ALONG WITH WPC NO. 9492 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NOS.9096 & 9492 OF 2009 ------------------------------------------------------ Dated this the 2nd April, 2009 JUDGMENT W.P.(C) No.9096 of 2009 is filed by the decree holder in O.S.No.90 of 2001, Sub Court, Kozhikode, while W.P.(C) No.9492 of 2009 is filed by the judgment debtors. The suit was for realisation of money. Two items of properties belonging to the judgment debtors were mortgaged in favour of the decree holder. The decree was passed on 26.11.2001. The decree holder filed E.P.No.272 of 2003 for realisation of the decree amount by sale of the mortgaged properties as well as five other items which were attached before judgment. Though there was an attempt to sell the properties by court auction sale, the sale did not take place due to various reasons. Meanwhile, some payments were made by the judgment debtors. The sale has not taken place and the Execution Petition is pending for the last more than six years. The decree amount is not realised till now and the execution proceedings have not come to an end. 2. The prayer made by the decree holder in W.P.(C) No.9096 of 2009 is to issue a direction to the Sub Court, Kozhikode to W.P.(C) NOS.9096 AND 9492 OF 2009 :: 2 :: consider and dispose of Ext.P8 petition and also to issue a direction to the Court to order sale of the properties in accordance with law. Ext.P8 petition referred to in W.P.(C) No.9096 of 2009 is an application filed by the decree holder praying that fresh proclamation for sale of the properties previously proclaimed for sale may be ordered to be issued. 3. W.P.(C) No.9492 of 2009 is filed by the judgment debtors challenging Ext.P6 order dated 7.8.2008 in E.A.No.378 of 2008 in E.P.No.272 of 2003 in O.S.No.90 of 2001. That was an application filed under Rule 58 of Order XXI of the Code of Civil Procedure, to lift the attachment in respect of item No.3 of the attachment schedule properties. The court below dismissed the application holding that item No.3 was attached before judgment and that no application was filed at the trial stage to lift the attachment. It was also held by the executing court that the judgment debtors are not entitled to file an application under Rule 58 of Order XXI and that they could only file an application under Rule 55 of Order XXI. The conditions for attracting Rule 55 having admittedly not been satisfied, the application could not be entertained under Rule 55 as well. W.P.(C) NOS.9096 AND 9492 OF 2009 :: 3 :: 4. In the application filed by the judgment debtors, it was stated that they propose to mortgage item No.3 in favour of a bank to raise funds for discharging the decree debt. It is also stated in the affidavit that the remaining properties would be sufficient to realise the decree debt. On the basis of these averments, it would appear that the application really should have been under Rule 83 of Order XXI of the Code of Civil Procedure. Though the view taken by the court below that the application under Rule 58 of Order XXI is not maintainable, I am of the view that the application could be considered under Rule 83 of Order XXI, in the facts and circumstances of the case. As already stated, two items of immovable properties, mentioned as item Nos.1 and 2 in the attachment schedule, were mortgaged to the decree holder Bank. It was not necessary to attach those items pending suit as those items were already mortgaged. Nevertheless, it would appear that those items and five other items were attached before judgment. Now item No.3 of the attachment schedule is sought to be mortgaged by the judgment debtors in order to raise money for paying the decree debt. 5. The counsel on either side submitted that all the seven items were proposed to be sold on earlier occasions. It was not W.P.(C) NOS.9096 AND 9492 OF 2009 :: 4 :: necessary for the executing court to do so. Only those items of properties required for satisfying the decree debt should have been proclaimed for sale. In the sale proclamation, the executing court could direct the properties to be sold in lots so that the judgment debtors need not have to lose all the items by one stretch of court auction sale. The decree holder need only to realise the decree debt and in that process, the law does not require the judgment debtors to lose not only their mortgaged properties but other properties as well. In the facts and circumstances of the case, I am of the view that the Writ Petition can be disposed of in the following manner: a) E.A.No.378 of 2008 filed by the judgment debtors shall be treated by the executing court as an application filed under Rule 83 of Order XXI and it shall be disposed of in accordance with law. The judgment debtors would be entitled to file an additional affidavit in support of the application making the necessary averments and putting forth such other materials as they wish to produce. The decree holder will be entitled to file a counter in that application, since the application has now W.P.(C) NOS.9096 AND 9492 OF 2009 :: 5 :: been treated as an application under Rule 83 of Order XXI. The court below shall hear the parties and pass final orders in E.A.No.378 of 2008 on or before 15.6.2009. b) The executing court shall proceed with the settlement of proclamation in the meanwhile. The court shall hear the parties, consider their objections and settle the proclamation in such a way that item Nos.1 and 2 shall be sold in one lot and, if necessary, the remaining items shall be sold in convenient lots. c) If the court below finds that the prayer made by the judgment debtors under Rule 83 of Order XXI can be granted and an order is to be passed to that effect, the execution sale shall not be ordered by the court below. However, a proclamation can be issued in such a way that the sale can be fixed to be held on a date between 16.8.2009 and 20.8.2009. d) If by private alienation proper amounts are realised and the decree is wiped out, it is not necessary to continue with the execution proceedings. W.P.(C) NOS.9096 AND 9492 OF 2009 :: 6 :: e) If the decree debt is not thus wiped out, the executing court shall proceed with the sale as proclaimed in the manner mentioned hereinabove. f) If the court below allows the application filed by the judgment debtors under Rule 83 of Order XXI of the Code of Civil Procedure, the period to complete the proceedings for private sale shall not extend beyond 15.8.2009. g) The executing court shall not grant unnecessary adjournments prayed for by either side. h) It is made clear that I have not expressed any opinion on the merits of E.A.No.378 of 2008 under Order XXI Rule 83. However, the finding of the court below that E.A.No.378 of 2008 is not maintainable under Rule 58 of Order XXI is confirmed. (K.T.SANKARAN) Judge ahz/