IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 OP(C).No. 3085 of 2011(O) ------------------------- EP.115/2008 of SUB COURT, TIRUR O.S. NO. 134/2002 PETITIONER ------------------ AMASSERY KUNJIMARAKKAR, S/O. AMASSERY MOIDUNNI, AMASSERY HOUSE, KUTTIPALA DESOM, PONNANI, MALAPPURAM. BY ADV. SRI.C.V.MANUVILSAN SRI.P.K.KHALEEMUDHEEN RESPONDENT -------------------- THAJUNISSA ALIYAKUNJU, D/O. NABEESA BEEVI, AKBAR MANZIL, PARAMBIL PALAM, ANDOORKONAM DESOM, ANDOORKONAM P.O., THIRUVANANTHAPURAM-695 584. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MM OP(C)NO. 3085/2011 APPENDIX PETITIONER'S EXHIBITS : P1 COPY OF THE AUCTION NOTICE UNDER ORDER 21 RULE 66 IN NEXUS WITH THE PROPERTY SITUATED IN RE-SY NO.232/8 OF PONNANI TALUK P2 COPY OF THE WEBSITE INFORMATION FROM THE SITE ADDRESS http:/igr. kerala.gov.in/fairvaluesearch.aspx, REGARDING THE FAIR VALUE OF THE PROPERTY SITUATED IN RE-SY NO.232/8 OF PONNANI TALUK DATED 06-03-2010 P3 COPY OF THE JUDGMENT DATED 29-07-2010, PASSED BY THIS HON'BLE COURT IN WRIT WP(C) NO.21599/2010 P4 COPY OF THE REVIEW PETITION FILED AS EA NO.450/2010 BEFORE THE SUB COURT TIRUR P5 COPY OF THE PROCEEDINGS SHEET IN E.P.NO.115/2008 RESPONDENT'S EXHIBITS NIL TRUE COPY P.A. TO JUDGE MM THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3085 of 2011 --------------------------------------- Dated this 27th day of September, 2011 JUDGMENT Petitioner is the judgment debtor in E.P.No.115 of 2008 of the Court of learned Sub Judge, Tirur seeking to invoke the power of this Court under Art.227 of the Constitution to quash the order for sale in Ext.P5, proceeding. Grievance of petitioner is that this court while disposing of W.P(C).No.21599 of 2010 by Ext.P3, judgment dated 29.07.2010 had observed that if the stage for preferring objection to the proclamation is not over, it is open to the petitioner to urge all his contentions before the executing court and that if there is an order for sale of the property without complying with Rule 64 of Order XXI of the Code of Civil Procedure (for short, "the Code”) it is open to the petitioner to seek review of the said order if law permit him to do so. On the strength of that observation petitioner filed E.A.No.450 of 2010 (Ext.P4) for 'review' of the order. Grievance of petitioner is that as seen from Ext.P5, proceeding even without disposing of E.A.No.450 of 2010 the executing court is proceeding to sell the property. O.P(C).No.3085 of 2011 -: 2 :- 2. In view of the submission made by the learned counsel I called for information from the learned Sub Judge, Tirur through the Registrar (Judicial) whether E.A.No.450 of 2010 (Ext.P4, application) was disposed of. The Registrar (Judicial) after contacting the learned Sub Judge has reported that petitioner filed E.A.No.450 of 2010 to condone the delay and to receive the counter affidavit on 30.06.2011, after hearing the parties the E.A was posted for orders on 07.07.2011 and while so, learned Sub Judge passed order on I.A.No.546 of 2010 on 07.07.2011 and that the objection (raised in E.A.No.450 of 2010 filed by petitioner) was also taken into account though a specific order was omitted to be passed on E.A.No.450 of 2010. It is also reported that the execution petition now stands posted to 03.10.2011 for production of draft sale proclamation. 3. I have heard learned counsel for petitioner and gone through the records. It is seen from Ext.P5, copy of the proceeding of the executing court that on 07.06.2010 respondents suggested upset price at `.5,00,000/- and petitioner also suggested the same price. On 07.07.2011 the Amin was deputed to set out 6 cents (out of the property brought up for sale) excluding the house for sale. On 26.07.2011 the Amin O.P(C).No.3085 of 2011 -: 3 :- submitted report and on 10.08.2011 the parties were heard and the matter was posted for orders on 17.08.2011. On 17.08.2011 the executing court directed to proclaim and sell the 6 cents (set out by the Amin as per order on E.A.No.546 of 2010 dated 07.07.2011). It is true that petitioner filed Ext.P4, E.A.No.450 of 2010 either for receiving the counter affidavit or for review (as the case may be). The main contention raised was that the entire property was not required to be sold and that the executing court did not apply its mind to the question whether entire property is required to be sold as provided under Rule 64 of Order XXI of the Code. Assuming that a specific order was not passed on E.A.No.450 of 2010, what the executing court has done on 07.07.2011 by directing the Amin to set out 6 cents excluding the house for sale is in effect invoking Rule 64 of Order XXI of the Code. In other words the objection of petitioner regarding sale of entire property was taken into account by the executing court and hence the mere fact that a specific order was not passed on E.A.No.450 of 2010 need not be taken as an infirmity in the execution proceeding requiring this Court to interfere in exercise of its power under Art.227 of the Constitution. I therefore find no reason to interfere in the matter but I take note of the fact that O.P(C).No.3085 of 2011 -: 4 :- the executing court has posted the case to 03.10.2011 for production of draft proclamation. 4. Learned counsel has requested that petitioner may be permitted to pay the amount in installments. That certainly is a request which petitioner has to make before the executing court. I leave that matter to be decided by the executing court after hearing respondent/decree holder, if any such request is made. But, petitioner cannot prolong the execution petition without payment of the amount. The execution petition itself was filed in the year 2008 and hence petitioner has to pay a portion of the decree amount so that, he can be permitted to raise the request for installment facility in the executing court. This petition is disposed of as follows: Petitioner is permitted to urge in the executing court his plea for installment facility to pay the amount due under the decree. Petitioner shall pay/deposit in the executing court for payment to the respondent Rs.50,000/- (Rupees Fifty Thousand Only) before 03.10.2011. (THOMAS P JOSEPH, JUDGE) Sbna/-