IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 OP(C).NO. 2116 OF 2011(O) ---------------------------------------- E.P. NO.292 OF 2008 IN OS.637/2002 OF PRINCIPAL SUB COURT,THRISSUR .................... PETITIONER: -------------------- MR.C.D.FRANCIS, CHIRAYATH HOUSE, ANTHIKAD.P.O., THRISSUR. BY ADV. SRI.A.DINESH RAO RESPONDENT(S): ------------------------- M/S.ECOMARK GENERAL FINANCE AND LEASING LIMITED, REGD.OFFICE AT 2ND FLOOR, THERATTIL J, ANTONY MEMORIAL MUNICIPAL BUILDING, ROUND SOUTH, THRISSUR, REPRESENTED BY ITS MANAGING DIRECTOR, MR.T.V.JAYAKUMAR. ADV. SRI.P.K.SAJEEV THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.2116 OF 2011 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE DECREE DATED 31.03.2008 IN O.S. NO.637 OF 2002 ON THE FILE OF THE PRINCIPAL SUB JUDGE, THRISSUR. EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 31.03.2008 IN O.S. NO.637 OF 2002 ON THE FILE OF THE PRINCIPAL SUB JUDGE, THRISSUR. EXHIBIT P3 TRUE COPY OF THE PROCLAMATION OF SALE. EXHIBIT P4 TRUE COPY OF THE OBJECTION DATED 25.11.2010. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 04.04.2011. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2116 of 2011 ==================================== Dated this the 19th day of July, 2011 J U D G M E N T Petitioner is the judgment debtor in E.P. No.292 of 2008 in O.S. No.637 of 2002 of the court of learned Principal Sub Judge, Thrissur aggrieved by Ext.P5, order. In execution of the decree for recovery of Rs.1,72,942/- with interest and costs, respondent- decree holder brought the property – 5 cents belonging to the petitioner for sale. Petitioner preferred objection to the proclamation schedule contending that value suggested by the respondent is alarmingly low and even as per the fair value fixed by the Government, the land value is Rupees One lakh per cent. Certain other contentions were also raised in Ext.P4, objection. The executing court passed Ext.P5, order on April 04, 2011 observing that property has to be sold in auction and that objection of petitioner has also to be incorporated in the proclamation. There was a further direction to proclaim and sell the property on July 05, 2011. According to the petitioner the order is not correct in that pursuant to the objection preferred by petitioner, respondent ought to have produced the amended proclamation schedule and petitioner ought to have been given opportunity to adduce O.P(C) No.2116 of 2011 -: 2 :- evidence regarding the actual value of property. Leaned counsel for respondent pointed out that grievance of petitioner is allayed by incorporating in the proclamation schedule the value suggested by the petitioner. I am inclined to think that the procedure adopted by the executing court is not correct. If the executing court wanted the value of the property suggested by the petitioner also to be brought into the sale proclamation there should have been an amended sale proclamation filed by the respondent-decree holder based on which further orders were to be passed by the executing court. Before ordering sale, respondent should have been directed to produce amended proclamation schedule. Objection of the petitioner that even as per the fair value fixed by the Government the land value is Rupees One lakh per cent is also to be enquired into to ascertain whether sale of a portion of the property is sufficient to discharge the decree debt. Unfortunately, petitioner did not adduce evidence in that line. Hence I am inclined to permit petitioner to adduce evidence. Resultantly, this Original Petition is allowed. Exhibit P5, order is set aside. The executing court is directed to conduct enquiry on the value of the property brought up for sale. O.P(C) No.2116 of 2011 -: 3 :- Petitioner will get opportunity to adduce evidence in that regard. Thereafter the executing court shall fix the upset price and proceed with the matter as provided under law. THOMAS P. JOSEPH, JUDGE. vsv