IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 WP(C).No. 36898 of 2008(P) -------------------------- AGAINST THE ORDER IN EP 26/2007 IN OS.741/2005 of PRL.MUNSIFF COURT, PALAKKAD .................... PETITIONER --------------- PUSHPALATHA, W/O.VISWAMBHARAN, AGED 44 YEARS, PALAKKAPRAMBU, VALLIKKODE, MUTTIKKULANGARA, PALAKKAD TALUK, PALAKKAD DISTRICT BY ADV. SRI.JACOB SEBASTIAN RESPONDENT: --------------- PREMAKUMARI, W/O.SANTHOSHKUMAR, AGED 29 YEARS, PALAKKAPRAMBU, VALLIKKODE, MUTTIKKULANGARA, PALAKKAD TALUK, PALAKKAD DISTRICT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------- W.P(C) No.36898 OF 2008-P ------------------------------- Dated this the 17th December, 2008. JUDGMENT Heard counsel for the petitioner. 2. Petitioner is the judgment debtor in E.P.26/2007 in O.S.741/2005 on the file of the Munsiff's Court, Palakkad. The grievance of the petitioner is that her property has been proclaimed for sale for tomorrow (18.12.2008) fixing the upset price at Rs.65,000/- though she has filed Ext.P2 objection to the draft proclamation notice wherein she has stated that the property would fetch Rs.5 lakhs in open market. According to the petitioner herself and members of her family are residing in the building in the schedule property and she has availed of loan also hypothecating the property with the Puthupariyaram Service Co-operative Bank about three years back. It is also stated in the objection that she is filing also a petition to set aside the decree which is passed ex parte. 3. The petitioner has extracted in the petition the orders passed in the E.P from 11.1.2007 onwards up to 11.11.2008. WPC 36898/2008 2 Orders so extracted shows that on 5.9.2007 objection to Rule 66 notice was filed by the petitioner/judgment debtor; that the E.P was dismissed for default on 7.6.2008 and was being restored to file on 17.9.2008 but that on 24.10.2008 the court recorded that there is no objection filed to the draft proclamation schedule and adjourned the case to 11.11.2008 for settlement of proclamation and on that day settled the proclamation fixing the upset price of the property at Rs.65,000/- as stated by the decree holder and ordered the property being proclaimed for sale and to conduct sale on 18.12.2008. 4. The contention of the counsel for the petitioner is that the court has not countenanced the objection filed to Rule 66 notice which was filed even before the dismissal of the E.P for default though the said objection also comes back to record when the E.P is restored to file and the court below should have considered the objection as well. I note that the situation has been brought about by a lawyer who has not appeared for the judgment debtor both on 24.10.2008 and on 11.11.2008. Had he appeared on 24.10.2008 and submitted before court that objection has been filed and also on 11.11.2008 when the case was adjourned for settlement of WPC 36898/2008 3 proclamation to submit before court as to what all are the objections of the judgment debtor, the petitioner/judgment debtor would not have been put to such a predicament. However, when the above facts are brought to my notice by the counsel for the petitioner I am of the view that the rights of the party has to be protected though it was not protected by her lawyer in the court below. 5. In the result I direct the court below to settle the proclamation afresh considering the objections raised by the petitioner/judgment debtor to Rule 66 notice and that while settling the proclamation the decree holder has necessarily to be directed to show the value of the property as stated by the judgment debtor specifying that to be the value as stated by the judgment debtor so that intending purchasers will be alerted to make enquiries regarding the real worth of the property. Further if the judgment debtor files any further objection pointing out the details of the liability with the exact balance amount to be deposited under the loan transaction with the Puthupariyaram Service Co-operative Bank charged on the schedule property that also has to be shown as an encumbrance in the proclamation schedule provided the liability is WPC 36898/2008 4 charged on the property brought to sale specifying that the liability is one as disclosed by the judgment debtor. The court below shall settle the proclamation afresh and shall proclaim and sell the property only thereafter. The sale fixed for tomorrow shall stand adjourned. 6. Counsel for the petitioner is directed to produce a copy of this judgment in the court below forthwith with notice to the counsel for the decree holder in the court below as this writ petition is being disposed of without notice to the respondent/decree holder. Issue copy urgently to the counsel for the petitioner. Writ petition is disposed of with the above directions. K.P.BALACHANDRAN JUDGE jj