IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 WP(C).No.33908 of 2008 (J) --------------------------------- IN EP 81/07 IN OS.76/2000 of SUB COURT, PALAKKAD .................... PETITIONER: --------------- A.ARUMUGHAN, S/O.ARUCHAMI, AGED 49 YEARS "ANAND NIVAS", ETHANUR AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.J.R.PREM NAVAZ RESPONDENTS: ------------------ 1. M/S.HEMAMBIKA CHITTIES AND LOANS PVT. LTD., REPRESENTED BY ITS CHAIRMAN, ENNAKKOTTIL STREET, BIG BAZAR, KOPPAM AMSOM, PALAKKAD TALUK. 2. M.A.SREEDHARAN, S/O.ANDIKUTTY, AGED 60 YEARS, MANIYANKAD HOUSE, MURUKANI, C.N.PURAM, PUTHUR AMSOM, PALAKKAD TALUK. 3. K.U.RADHAKRISHNAN, S/O.T.VISWANATHAN, AGED 42 YEARS, MANAGER, LAKSHMI FINANCE CORPORATION HIRE PURCHASE LTD., MANNAM BUILDINGS, SHORANUR, OTTAPPALAM TALUK. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.33908 of 2008 (J) APPENDIX PETITIONER'S EXTS:- EXT.P1:- TRUE COPY OF THE EXECUTION PETITION, E.P.81/07 IN O.S.76/00 BEFORE THE SUB COURT, PALAKKAD. EXT.P2:- TRUE COPY OF THE OBJECTIONS DT.20/10/08 FILED BY THE PETITIONER IN EXT.P1. EXT.P3:- TRUE COPY OF THE PROCEEDINGS OF THE COURT BELOW IN E.P.81/07 IN O.S.76/00 OF SUB COURT, PALAKKAD. EXT.P4:- TRUE COPY OF THE SALE NOTICE OF THE PROPERTY ON THE 24TH OF NOVEMBER, 2008. ........................... K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.33908 of 2008 ------------------------------------------------ Dated this the 11th day of December, 2008 JUDGMENT The petitioner is the first judgment debtor in O.S.76/2000 on the file of the Sub Court, Palakkad. The first respondent/company is the decree holder and they filed Ext.P1 execution petition in the court below for realisation of the decree debt which comes to more than Rs.4 lakhs by sale of the properties attached before judgment. The court below is seen to have ordered Rule 66 notice to the petitioner/first judgment debtor and posted the case for return of notice to 20/10/08. On the same day namely 20/10/08 the petitioner/ first judgment debtor filed Ext.P2 objection contending that the properties sought to be brought to sale is worth at least Rs.15 lakhs and that the upset price shown as Rs.3 lakhs is very meagre and also pointed out certain W. P. C. No.33908 of 2008 -2- mistakes in the claims advanced in the E.P on certain counts so that the entire amount shown in the E.P will not be the actual amount due. It does not appear that the court below has countenanced the said objection at all. The court has neither overruled the objections regarding the correctness of the amount claimed nor has the execution court considered objections raised to the upset price shown in the draft proclamation schedule. Without considering both those aspects and without fixing the amount due under the decree to the decree holder and also fixing the upset price of the property, the property could not have been ordered to be sold. But the court below has ordered the property being proclaimed and sold showing the upset price at Rs.3.5 lakhs vide order dt.20/10/08. The procedure adopted by the court below is too hasty and without following the procedure prescribed to execute W. P. C. No.33908 of 2008 -3- a money decree by sale of property attached before judgment. Hence, all further proceedings in execution pursuant to the order dt.20/10/08 is set aside and the execution court is directed to fix the amount due to the decree holder under the decree and thereafter consider the objections filed by the petitioner/first judgment debtor to Rule 66 notice; decide as to whether all the items of properties are to be sold for the debt and thereafter fix the upset price of the property to be sold and if the upset price that can be fixed with available materials does not come to the amount suggested by the judgment debtor to direct sale being conducted settling the proclamation showing also the value of the property as shown by the first judgment debtor in the proclamation schedule specifying that it is the value shown by the first judgment debtor only thereafter, the property be W. P. C. No.33908 of 2008 -4- ordered to be proclaimed and sold. This Writ Petition is disposed of with the above directions. K.P.BALACHANDRAN, JUDGE kns/-