IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 WP(C).No.35258 of 2008 (V) ---------------------------------- AGAINST THE ORDER IN EP 306/2004 IN OS.184/2001 of SUB COURT, MUVATTUPUZHA .................... PETITIONER: --------------- JOHN AMBATTU, S/O. XAVIER, AGED 59, AMBATTU HOUSE, MEKKADAMBU, VALAKOM, ERNAKULAM. BY ADV. SRI.K.R.VINOD RESPONDENT: ---------------- MATHEW, S/O. SEBASTIAN, VELLAMARUTHAKKAL HOUSE, ALLAPRA P.O., PERUMBAVOOR. ADV. SRI.GRASHIOUS KURIAKOSE FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.35258 of 2008 (V) APPENDIX PETITIONER'S EXTS:- EXT.P1:- THE PHOTOCOPY OF THE DECREE IN O.S.184/01 DT.24/01/04 OF SUB COURT, MUVATTUPUZHA. EXT.P2:- THE COPY OF THE E.P. NO.306/04 FILED BY THE RESPONDENT. EXT.P3:- THE COPY OF THE E.A. NO.60/06 FILED BY THE PETITIONER TO SET ASIDE THE EX PARTE ORDER. EXT.P4:- THE COPY OF ORDER OF THE LEARNED SUB JUDGE DT.07/12/07 DISMISSING E.A. NO.60/06. EXT.P5:- THE COPY OF THE SALE PROCLAMATION AFFIXED IN THE HOUSE PREMISES OF THE PETITIONER. ................. K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.35258 of 2008 ------------------------------------------------ Dated this the 2nd day of February, 2009 JUDGMENT The petitioner is the first judgment debtor in O.S.184/01 on the file of the Sub Court, Muvattupuzha. In proceedings in execution for realisation of the decree amount the attached property was sought to be brought to sale by the respondent/decree holder. Petitioner did not enter appearance on receipt of notice under Rule 66 of Order 21 C.P.C. It is seen that he was set ex parte on 02/09/05, but he filed a petition on 27/02/06 seeking for an order setting aside the ex parte order passed against him. The court below dismissed the said petition as time barred as seen from Ext.P4 order. At the same time, as per the proclamation produced as Ext.P5, the upset price shown in the schedule filed by the decree holder is Rs.1,20,000/- for the entire W. P. C. No.35258 OF 2008 -2- 47 and odd cents of property with a building therein, but in the sale proclamation which contains the conditions for auction and the time and date of auction it is seen noted that the upset price is Rs.2,50,000/-. It is not seen from any of the records produced that the court fixed upset price at Rs.2,50,000/- and counsel for the decree holder is unable to submit whether there was such an order and there is no endorsement in the sale notification to the effect that the upset price of Rs.2,50,000/- is as fixed by the court or is something written unauthorisedly by any one. In the circumstances, I cannot but observe that the sale can be conducted only by a proper proclamation and not proclaiming publication of sale in such inconsistent manner. Further, while finalising the proclamation for sale of property belonging to W. P. C. No.35258 OF 2008 -3- the judgment debtor if at all he comes forward at any stage before actual sale of the property raising objection to the upset price fixed contending that the property is worth much more than the value shown in the proclamation it is only proper that the court permits the judgment debtor to file an objection; hear his objections as well to the draft proclamation or the proclamation already settled and then finalise and settle the proclamation considering the objections of the judgment debtor as well provided the property that is brought to sale belongs to that particular judgment debtor. At the same time, it would suffice that the execution court shows in the proclamation schedule, the description and the value of the property as stated by the judgment debtor as well so as to alert the intending purchasers and put them to W. P. C. No.35258 OF 2008 -4- enquiry as to the real value and nature of the property so that it will not and cannot be complained later that the judgment debtor/ owner of the property brought to sale was not heard and his property was sold at a very paltry sum in court sale and thus injustice has been worked out. 2. In view of the above discussion, I am of the view that Ext.P5 sale proclamation requires to be set aside and the court below directed to settle the proclamation afresh after hearing the objections of the judgment debtor whose property is sought to be got sold as also the decree holder and settle the proclamation thereafter enabling the decree holder to show the upset price contended by the judgment debtor also to be incorporated in the proclamation schedule and also along with the nature of the property which the judgment W. P. C. No.35258 OF 2008 -5- debtor may desire to have described in the proclamation schedule in appropriate cases. 3. In the result, I set aside Ext.P5 and remit the case back to the execution court. The court below shall enable the petitioner first judgment debtor to file objections to the sale proclamation and incorporate the details furnished by him also as regards nature of property if appropriate and the value the property would fetch, as suggested by the judgment debtor in the proclamation schedule; settle the proclamation and then proclaim the property and sell the same. The petitioner if so advised may clear off the debt by making payments in substantial portions considering the total decree debt and not however, in paltry instalments. Objection if any to the proclamation schedule shall be filed by the petitioner/first judgment debtor W. P. C. No.35258 OF 2008 -6- positively within ten days from today in the court below. 4. Counsel for the petitioner submits that a portion of the property that is sought to be brought to sale will be sufficient to discharge the entire debt. If that be so, the judgment debtor shall file objections specifying that; file a draft sketch of the portion of the property which he would like to be put to sale in the first instance showing separately the upset price thereof. In that event, the court below may make an attempt to have the decree satisfied by bringing to sale that portion only, provided it would be feasible to have separate sale of the plot so suggested by the judgment debtor. However, if it is seen that the contention has been raised only with a view to protract the matter and to see that sale does not take place for an W. P. C. No.35258 OF 2008 -7- amount so as to satisfy the decree debt. A further opportunity however, will not be available to the judgment debtor to contend again that the property has to be sold in part by incorporating some more extent or a different portion of the same property. 5. This writ Petition is disposed of with the above directions. K.P.BALACHANDRAN, JUDGE kns/-