IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 OP(C).NO. 2799 OF 2011(O) ---------------------------------------- OS.7/2006 OF SUB COURT, KATTAPPANA .................... PETITIONER-JUDGMENT DEBTOR: -------------------------------------------------- P. SELVAKUMAR, S/O. PALSWAMI, AGED 36 YEARS, SULTHANIA ESTATE, SULTHANIA, AYYAPPANCOIL VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADV. SRI.C.K.PAVITHRAN SRI.M.VIVEK RESPONDENT – DECREE HOLDR: ------------------------------------------------- UNION BANK OF INDIA, AYYAPPANCOIL BRANCH, REPRESENTED BY ITS MANAGER, UNION BANK OF INDIA, AYYAPPANCOIL BRANCH, UDUMBANCHOLA TALUK P.O., IDUKKI DISTRICT – 685 554. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C)NO.2799 OF 2011 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE DECREE DATED 30.10.2007 IN O.S. NO.7 OF 2006. EXHIBIT P2 TRUE COPY OF THE EXECUTION PETITION DATED 28.5.2008 IN O.S.NO.7 OF 2006. EXHIBIT P3 TRUE COPY OF THE SALE PROCLAMATION DATED 7.7.2011. EXHIBIT P4 TRUE COPY OF E.A. NO.105 OF 2011 ALONG WITH AFFIDAVIT. EXHIBIT P5 TRUE COPY OF E.A. NO.104 OF 2011 ALONG WITH AFFIDAVIT. EXHIBIT P6 TRUE COPY OF THE OBJECTION DATED 22.7.2011. EXHIBIT P7 TRUE COPY OF THE COMMON ORDER DATED 23.7.2011IN E.A. NO.104 OF 2011 AND 105 OF 2011 IN E.P.NO.29 OF 2008. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2799 of 2011 ==================================== Dated this the 24th day of August, 2011 J U D G M E N T Third judgment debtor in E.P. No.29 of 2008 in O.S. No.7 of 2006 of the court of learned Sub Judge, Kattappana is the petitioner before me challenging Ext.P7, common order on E.A. Nos.104 of 2011 and 105 of 2011 in E.P. No.29 of 2008. Respondent has obtained a money decree against petitioner and others and that decree is being executed. Amount due to the respondent is more than Rupees Three lakhs. It would appear that though notice under Rule 22 of Order XXI of the Code of Civil Procedure (for short, “the Code”) was issued to the petitioner, he did not appear and hence he was set ex parte. Later, notice under Rule 66 of Order XXI of the Code was issued to the petitioner. Thereon he appeared in the executing court and filed E.A. No.105 of 2011 to set aside the ex parte order and E.A. No.104 of 2011 to adjourn the sale. He also preferred Ext.P6, objection to the draft proclamation on the ground that of the 4.6 acres of Cardamom estate scheduled to be sold (C and D Schedule items in the E.P.), sale of a portion is sufficient to satisfy the decree debt. O.P(C) No.2799 of 2011 -: 2 :- Executing court dismissed Exts.P4 and P5 (I.A. Nos.105 of 2011 and 104 of 2011, respectively) by Ext.P7, common order. The said order is under challenge. 2. Learned counsel for petitioner submitted that notwithstanding absence of petitioner at the stage of considering executability of the decree on the Rule 22 notice, executing court ought to have considered the objection (Ext.P6) to the sale proclamation preferred by petitioner. It is also asserted that sale of a portion of C and D schedule items is sufficient to satisfy the decree debt. 3. Learned counsel for respondent contended that respondent also did not get opportunity to reply to Ext.P6, objection preferred by the petitioner. 4. Having regard to the circumstances stated it appears to me that notwithstanding absence of petitioner pursuant to Rule 22 notice he is entitled to take part in the proceeding on receipt of notice under Rule 66 from that stage. Therefore Ext.P4, application (E.A. No.105 of 2011) to set aside the ex parte order was not absolutely necessary. It is open to the petitioner to appear in the executing court pursuant to Rule 66 notice to take part in the proceeding from that stage onwards. O.P(C) No.2799 of 2011 -: 3 :- 5. So far as the contention that sale of a portion of the property is sufficient to satisfy the decree debt is concerned, it seen that petitioner has not adduced evidence in that line. Mere objection in that way is not sufficient. If petitioner has a case that sale of a portion of C and D schedule items in E.P. No.29 of 2008 is sufficient to satisfy the decree debt he has to adduce appropriate evidence in that line. Having regard to the circumstances stated I am inclined to interfere in the matter. Resultantly, Original Petition is disposed of in the following lines: (a) Petitioner is given opportunity to urge before the executing court that sale of a portion of C and D schedule items is sufficient to satisfy the decree debt subject to the condition that petitioner deposited in the executing court for payment to respondent Rs.65,000/- (Rupees Sixty five thousand only) within one month from this day. (b) Sale of property scheduled to be held on 25.08.2011 will stand adjourned to a day after one month from this day on condition O.P(C) No.2799 of 2011 -: 4 :- that petitioner, without prejudice to the contention he has raised that sale of a portion of C and D schedule items is sufficient, files an affidavit in the executing court before the time scheduled for sale of the property waiving fresh proclamation for such sale. (c) It is made clear that if any of the above conditions is not complied it is open to the executing court to proceed with execution pursuant to Ext.P7, common order. (d) If petitioner is willing to pay the amount in installments, it is open to the petitioner to make a request in that line in the executing court and if any such request is made executing court shall consider the same and pass appropriate orders after hearing counsel for respondent also. THOMAS P. JOSEPH, JUDGE. vsv