IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 21ST JANUARY 2008 / 1ST MAGHA 1929 WA.No. 129 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.24370/2007 Dated 04/09/2007 .................... APPELLANT/APPELLANT: -------------------- JOMEY MATHEW, S/O. JOSEPH MATHEW, AGED 37 YEARS, KOOTTUMMAL, PULINKUNNU, ALLEPPEY DISTRICT. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS/PETITIONERS/RESPONDENTS/RESPONDENTS 1 TO 3/ RESPONDENTS /RESPONDENTS 1 TO 3: ----------------------- 1. P.F.SCARIA, S/O. FRANCIS, KIZHAKKE PUNNOOR HOUSE, PULINKUNNU P.O., ALAPPUZHA DISTRICT. 2. THE CANARA BANK, PULINKUNNU BRANCH, ALAPPUZHA, REPRESENTED BY ITS MANAGER. 3. THE RECOVERY OFFICER, DEBT RECOVERY TRIBUNAL FOR KERALA AND LAKSHADWEEP, ERNAKULAM. 4. M/S. MATHA MODERN RICE MILLS, ONNAMKARA, THEKKEKARA P.O., ALAPPUZHA, REPRESENTED BY ITS MANAGING PARTNER. 5. NEDUMUDY VILLAGE SERVICE CO-OPERATIVE SOCIETY LTD.NO.2331, ALAPPUZHA, REP. BY ITS SECRETARY. 6. THE KERALA FINANCIAL CORPORATION, ALAPPUZHA BRANCH, ALAPPUZHA, REP. BY ITS MANAGER. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR SRI.V.B.UNNIRAJ, SC FOR KFC SRI.K.K.M.SHERIFF SRI.P.GOPINATHAMENON THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- W.A.NO.129 OF 2008 () ----------------------------------- Dated this the 21st day of January, 2008 J U D G M E N T KOSHY,J. Writ petitioner was a guarantor to the debt taken by the 3rd respondent. His properties schedule 'C' and 'D' were also mortgaged to secure the debt. Because of the liabilities of the 3rd respondent, several recovery steps were taken by the Kerala Financial Corporation, Canara Bank etc. Five properties were actually secured by the Canara Bank. Out of the five, schedule 'B' property belonged to the principal debtor. That was already sold in recovery proceedings. When the petitioner's properties 'C' and 'D' were proposed to be sold, he approached this Court stating that before proceeding with those properties schedule 'A' and 'E' properties shall be proceeded with. According to him, totally he has only 10 cents whereas schedule 'A' and 'E' properties were one acre and 60 cents. The contention of the appellant is that he was not made WA.129/2008 2 a party to the writ petition and impugned judgment was obtained behind his back. He purchased the property under court auction and since all the properties are charged, it cannot be claimed by the petitioner (guarantor of the debt) that his property can be sold only last. If any objection is there, he has to approach the recovery officer. We agree with the above. It cannot be directed in a writ petition filed under Article 226 of the Constitution of India that property which was offered as security cannot be sold only after property of the appellant who was not made a party to the writ petition is sold. If there is any objection, it is for the parties to file before the Recovery Officer according to law. Impugned judgment is set aside. Writ appeal is allowed to the above extent. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp WA.129/2008 3 J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 1st January, 2008