IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 WP(C).No.32037 of 2008 (L) --------------------------------- EP.79/2001 IN OS.84/1990 of SUB COURT,ALAPPUZHA .................... PETITIONERS: ----------------- 1. MANI, S/O.LATE GOPALAKRISHNAN, THAIPARAMBIL (H), MULLAKKAL, ALAPPUZHA. 2. MALLIKA MURUGAN, W/O.LATE MURUGAN, THAIPARAMBIL (H), MULLACKAL, ALAPUZHA. 3. KRISHNA LAKSHMI, AGED 10 YEARS, D/O.LATE MURUGAN THAIPARAMBIL (H), MULLACKAL, ALAPUZHA REPRESENTED BY MOTHER AND GUARDIAN MALLIKA MURUGAN. 4. APARNA MURUGAN, AGED 8 YEARS, D/O.LATE MURUGAN THAIPARAMBIL (H), MULLACKAL, ALAPUZHA REPRESENTED BY MOTHER AND GUARDIAN MALLIKA MURUGAN. BY ADV. SRI.M.P.RAMNATH SRI.P.RAJESH(KOTTAKKAL) RESPONDENT: ---------------- MONCY DANIEL, PANACHOOR (H) MULLACKAL, ALAPPUZHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.32037 of 2008 (L) -2- APPENDIX PETITIONERS' EXTS:- EXT.P1:- TRUE PHOTO COPY OF THE EXECUTION PETITION IN E.P.79/01 IN O.S.84/1990. EXT.P2:- TRUE PHOTOSTAT COPY OF THE FIRST OBJECTIONS FILED BY THE JDs TO THE DRAFT PROCLAMATION OF THE RESPONDENT. EXT.P3:- TRUE PHOTO COPY OF FRESH DRAFT SALE PROCLAMATION FILED BY THE RESPONDENT/DECREE HOLDER IN E.P. NO.79/2001. EXT.P4:- TRUE PHOTOCOPY OF THE OBJECTIONS DATED 26/09/08 FILED BY THE JDs TO THE FRESH DRAFT SALE PROCLAMATION. EXT.P5:- TRUE PHOTOCOPY OF ORDER DT.26/09/2008 OF SUB COURT, ALAPUZHA. //TRUE COPY// P.A. TO JUDGE K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.32037 of 2008 ------------------------------------------------ Dated this the 14th day of November, 2008 JUDGMENT This writ petition has been filed by judgment debtors 2, 4, 5 and 6 in E.P.79/01 in O.S.84/90 of the Sub Court, Alappuzha for quashing Ext.P5 order settling proclamation fixing upset price as stated in the proclamation schedule and ordering sale being conducted on 04/11/08. The additional decree holder is the respondent. 2. It is vehemently contended before me by the learned counsel for the petitioners that to the draft proclamation filed along with Ext.P5 execution petition they had filed Ext.P2 objection raising contentions to the effect that for satisfaction of the decree debt the entire property need not be sold; that the decree holder is not entitled to proceed with execution without impleading the W. P. C. No.32037 of 2008 -2- other heirs of the original decree holder; and that the un-probated will in favour of the respondent/additional decree holder is not genuine. He submits that pursuant to the objection Ext.P3 draft sale proclamation was filed, but there again the price of the property shown is only Rs.9 lakhs as stated in the original draft proclamation schedule filed to the E.P; that Ext.P4 objection was filed to the said draft also wherein also it was contended that the entire property of 6.5 cents with buildings need not be sold as even one cent will be worth Rs.25 lakhs; and that without a succession certificate the respondent is not entitled to execute the decree. He further submits that before considering the objections in detail the court was directing the decree holder to file fresh draft proclamation and it was accordingly that Ext.P3 draft proclamation was filed but W. P. C. No.32037 of 2008 -3- immediately on filing Ext.P3 draft proclamation without considering the fact that there are other valid objections the court was passing Ext.P5 order settling the proclamation observing that no objection is filed to draft sale proclamation. The objections are seen to be tenable. Though Ext.P5 order says that upset price is fixed, the court has not fixed any amount probably it could only be the upset price shown in Ext.P3. What is so shown is Rs.9 lakhs. The price suggested by the judgment debtors is also shown as such as being above Rs.1 crore. Strangely enough nowhere in Ext.P3 there is any mention as to what is the decree debt for which the property is brought to sale. Further with respect to the other objections also the court has not passed any considered order namely as to whether the entire property requires to be sold considering the location, importance and W. P. C. No.32037 of 2008 -4- market value of the property and as to whether the respondent alone is entitled to execute the decree without a succession certificate or probating the will, without the junction of other legal heirs. For all the above reasons, Ext.P5 order of the court below deserves to be set aside and I do so. The court below shall consider the objections filed by the judgment debtor and pass appropriate orders and shall also see that fresh proclamation in accordance with law which satisfies all the legal requirements is caused to be filed by the decree holder before settlement of proclamation and the property is ordered to be proclaimed and sold. 3. Writ Petition is thus allowed. K.P.BALACHANDRAN, JUDGE kns/-