IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 WP(C).No. 4105 of 2009(L) --------------------------------- OS.168/2002 of SUB COURT, KOTTARAKKARA .................... PETITIONER : ---------------- ASHOK RAMACHANDRAN, PROPRIETOR, PARASYAVEDHI ADVERTISING & MARKETING CONSULTANT, KOLLAM. BY ADV. SRI.V.BHASKARAN PILLAI RESPONDENT : ----------------- K.RADHAMOHAN, KAILAS, EZHUKONE.P.O, KOLLAM. ADV. SRI.B.MOHANLAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------- W.P.(C) No.4105 OF 2009 --------------------------------------- Dated this the 30th day of March, 2009 JUDGMENT The decree holder in O.S.No.168/2002, Sub Court, Kollam which is pending in execution in E.P.No.30/2004 on the file of the Sub Court, Kottarakkara challenges Ext.P8 order dated 19.01.2009 passed by the executing court by which the prayer made by the judgment debtor to enhance the upset price of the property to be sold was allowed and the upset price was fixed at Rs.12,50,000/-. 2. The decree is for Rs.3,76,387/- together with interest. The court below fixed the upset price at Rs.6,00,000/-. No bidders were present on the date fixed for sale. Pointing out that in E.P.No.28/2004 in O.S.No.86/2002 in which the petitioner is the decree holder, the property was sold in auction and was purchased by the petitioner/decree holder for a sum of Rs.12,50,000/-, the judgment debtor in the present case filed the application for enhancing upset price. That application was allowed by the court. 3. The decree holder opposes the enhancement of the W.P.(C) No.4105 of 2009 2 upset price. According to the decree holder, the property would not fetch a value of Rs.12.5 Lakhs. According to the judgment debtor, the property is very valuable and the value fixed at Rs.12.5 Lakhs is on the lower side. If no upset price is fixed, the judgment debtor says that his property would be sold for a low price. 4. It is stated in the Writ Petition and it is admitted by the respondent that in E.P.No.38/2006 in O.S.No.190/2002 in which one Jayaraj is the decree holder, the very same property was sold in auction and it was purchased by one Jayaraj, the decree holder therein for a sum of Rs.3,10,000/-. The petitioner/decree holder submits that he has filed a claim petition in that Execution Petition and that it is pending disposal. The sale is not confirmed. The learned counsel for the respondent/judgment debtor submitted that the judgment debtor has filed an application to set aside the sale and that the said application is pending. 5. It is not proper for me to decide in this Writ Petition whether the decree holder is entitled to proceed with the execution in the present case in view of the auction sale W.P.(C) No.4105 of 2009 3 already held in E.P.No.38/2006 in O.S.No.190/2002 since the matter has not become final in that proceeding. I am not expressing any opinion on that contention put forward by either side. 6. At the same time, the question to be decided by me is whether Ext.P8 order dated 19.01.2009 passed by the executing court enhancing the upset price is legal or proper. It is well settled that the court need not fix the upset price in a court auction sale. After the amendment of Rule 66 of Order XXI of the Code of Civil Procedure by the 1976 amendment Act, the second proviso to Sub Rule 2 specifically provides that nothing in the Rule shall be construed as requiring the court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given by either or both of the parties. It is also well settled that if the court fixes the upset price, it must be after passing a judicially considered order. Therefore, Ext.P8 order dated 19.01.2009 is liable to be set aside. I do so. 7. The court below shall issue directions to incorporate in the sale proclamation the value of the property as suggested W.P.(C) No.4105 of 2009 4 by the decree holder and judgment debtor. Both parties would be entitled to file statements showing the value of the property and produce such materials which are necessary to be incorporated in the sale proclamation. The court below shall consider the same and issue appropriate directions for incorporation of the necessary details in the sale proclamation. The Writ Petition is allowed as above. K.T.SANKARAN JUDGE pac