IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 WP(C).No. 1142 of 2009(J) ------------------------- OS.391/2002 of MUNSIFF COURT, KOTTARAKKARA .................... PETITIONER: --------------- BABU GEORGE, AGED 53, S/O. GEORGE, THEVANNUR MURIYIL PUTHEN HOUSE, VALAKAM VILLAGE, KOTTARAKKARA TALUK. BY ADV. MR. G.SREEKUMAR (CHELUR) RESPONDENT: --------------- VIJAYA BALAN, D/O. DAMODARAN PILLA, SREESHYLAM, THEVANNUR MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK. ADV. MR. SAJU.S.A. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).1142/2009 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- A TRUE COPY OF THE JUDGMENT IN O.S.391/2002 DT. 15.2.2006 ON THE FILE OF THE MUNSIFF COURT, KOTTARAKKARA. EXT.P2:- A TRUE COPY OF E.P.44/2007 ON THE FILE OF MUNSIFF COURT, KOTTARAKKARA IN O.S.NO.391/2002 DT.23.5.2007. EXT.P3:- A TRUE COPY OF THE OBJECTIONS RAISED BY THE PETITIONER IN EXT.P2 DT.6.10.2008 EXT.P4:- A TRUE COPY OF THE SALE PROCLAMATION IN EXT.P2 WITH THE SCHEDULE ATTACHED DT.5.12.2008 RESPONDENT'S EXHIBITS:- NIL Okb - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- W.P(C).No. 1142 OF 2009 -------------------------------------------------- Dated this the 3rd day of March, 2009 J U D G M E N T Petitioner is the fourth defendant in O.S.391 of 2002 on the file of Munsiff Court, Kottarakkara. E.P.44 of 2007 was filed for execution of the decree. In the E.P., property of the petitioner was sought to be sold for realisation of the decree debt. Ext.P3 objection was filed by the petitioner to the sale proclamation contending that the extent of the property sought to be sold is not correct and the value shown is far less than the actual value and the property would fetch Rs.30 lakhs and in any case for realisation of the decree debt, sale of two cents of the property would be sufficient. Writ petition is filed challenging Ext.P4 sale proclamation contending that executing Court did not consider Ext.P3 objection at all. 2. Learned counsel appearing for petitioner and respondent were heard. 3. As the sale proclamation shows that the property is to be sold for the upset price of Rs.50,000/- and the value claimed WP(C).1142/2009 2 by the judgment debtor in Ext.P3 is not shown it is clear that Ext.P3 objection filed by the judgment debtor was not considered by the executing Court. Even though it is not for the executing Court to give its own assessment on the value of the property shown in the sale paper, second proviso to Rule 66 of Order XXIX of Code of Civil Procedure mandates that the value claimed by the judgment debtor shall also be shown in the sale proclamation. As the sale proclamation is not in accordance with the provisions of Rule 66 of Order XXIX, the order is set aside. Executing Court is directed to reconsider the question and proclaim and sell only thereafter. Executing Court shall consider Ext.P3 objection filed by the judgment debtor and decide whether the entire property is to be sold or sale of a part of the property is sufficient to realise the decree debt and then only proclaim the property for sale. M. SASIDHARAN NAMBIAR, JUDGE okb