IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WP(C).No. 11196 of 2009(O) -------------------------- OS.32/2008 of SUB COURT, PALA .................... PETITIONER(S): --------------- BASIL THOMAS, KANJIRETHUNKAL HOUSE ANTHINADU KARA, LALAM VILLAGE, ANTHINADU P.O. KOTTAYAM DISTRICT. BY ADV. SRI.GEORGEKUTTY MATHEW RESPONDENT(S): --------------- SHAJI THOMAS,KUNNATHOOR HOUSE, KADANADU KARA,KEDANADU P.O. KOTTAYAM DISTRICT. ADV. SRI.SHAJI THOMAS PORKKATTIL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.11196/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE MEDICAL CERTIFICATE DATED 2.12.2008 ISSUED BY DOCTOR K.DEVARAJAN. EXT.P2: COPY OF THE E.P.NO.77/08 IN O.S.NO.32/08 IN THE FILE OF SUB COURT, PALAI. EXT.P3: COPY OF I.A.NO.1874/08 IN O.S.NO.32/08 IN THE FILE OF THE SUB COURT, PALAI. EXT.P4: COPY OF ORDER DATED 9.12.2008 IN I.A.NO.1874/08 IN O.S.NO.32/08 IN THE FILE OF SUB COURT, PALAI. EXT.P5: COPY OF THE PROCLAMATION OF SALE DATED 9.3.2009. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.11196 OF 2009 (O) ----------------------------------- Dated this the 8th day of September, 2009 J U D G M E N T The writ petition is filed seeking mainly the following relief: i. to quash Ext.P5 proclamation of sale as arbitrary and illegal. 2. Petitioner is the judgment debtor in E.P.No.77 of 2008 in O.S.No.32 of 2008 on the file of the Sub Court, Pala. Respondent is the decree holder. The decree executed is one for recovery of money. In the execution proceedings, proclamation was settled for sale after complying with the formalities, attaching immovable properties belonging to the petitioner to satisfy the decree debt. Ext.P5 is the proclamation settled for sale of the property. Challenging the WPC.11196/09 2 proclamation by contending that the upset price shown is very low and the market value of the property is much more, petitioner has approached this Court and filed this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. The learned counsel for the petitioner submits that if three months time is granted, petitioner will discharge the entire decree debt. The counsel for the respondent/decree holder resisted the request for further time, contending that though several opportunities have been extended, the decree debt had not been discharged so far. It is noticed that when the writ petition was admitted, interim stay of execution was granted directing the petitioner/judgment debtor to make part payment. During the pendency of the writ petition, it is submitted that Rs.1 lakh had been paid by the judgment debtor towards discharge of the decree debt. Whether the petitioner is to be granted any further extension of time to make the deposit is left open to be considered by the execution court. So far as the present writ petition, I find that the challenge against Ext.P5 proclamation WPC.11196/09 3 made for settlement and sale alone need be considered. It is submitted that no objection was filed though notice was issued under Order XXI Rule 66 of the Code of Civil Procedure; but, taking note that the judgment debtor had already paid a sum of Rs.1 lakh and only in respect of the balance amount, sale has to be proceeded with, a fresh proclamation is necessary. In that view of the matter, I find that in fixing the upset price, value of the property, if any, suggested by the judgment debtor will also be shown in the proclamation, and further more, it is seen, the extent of the property proceeded against is seemed to be one acre 96 3/4 cents. The court below may also consider whether the whole property has to be proceeded to sale for the balance amount outstanding towards decree debt. These two aspects are to be considered by the court in settling the proclamation afresh. Subject to the above direction, the writ petition is disposed. S.S.SATHEESACHANDRAN JUDGE prp