IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 WP(C).No. 33949 of 2009(O) -------------------------- AGAINST THE ORDER IN EP. 6 /2009 IN ARC.271/2002-03 of SUB COURT, TIRUR .................... PETITIONER(S): --------------- AMBALAVATTAM DINESAN, AGED 59, S/O.ARIPANATH KOCHUKUNJU, AMBALAVATTAM, EDARIKODE P.O., TIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.R.SURAJ KUMAR SRI.N.AJITH RESPONDENT(S): --------------- THE SECRETARY, THE PARAPPANANGADI REGIONAL HOUSING CO-OPERATIVE SOCIETY LTD.NO.(H) 38, P.O.PARAPPANANGADI. ADV. SRI.V.RAJENDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.33949/2009 ORDER ON IA NO.1236/2010 IN WP(C) NO.33949/2009 CLOSED 20.05.2010 Sd/-THOMAS P.JOSEPH, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF AWARD DATED 18.11.2002 EXT.P2 TRUE COPY OF ORDER IN RP 56/2004 EXT.P3 TRUE COPY OF E.P.NO.6/2009 EXT.P4 TRUE PHOTOCOPY OF THE DSP PRODUCED BY THE RESPONDENT BANK EXT.P5 TRUE PHOTOCOPY OF OBJECTION FILED BY THE PETITIONER TO THE DSP EXT.P6 TRUE COPY OF HE SALE PROCLAMATION DATED 15.9.2008 EXT.P7 MEMO DATED 19.9.2009 EXT.P8 TRUE COPY OF THE PETITION EXT.P9 TRUE COPY OF THE PROCLAMATION DATED 7.11.2009 EXT.P10 TRUE COPY OF THE PROCEEDINGS IN EP NO.6/2009 IN ARC NO.271/2002-03 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.33949 of 2009 -------------------------------------- Dated this the 20th day of May, 2010. JUDGMENT This petition is in challenge of Ext.P9 proclaiming and directing sale of property of the petitioner. He has suffered an award for payment of money in A.R.C.No.271 of 2002-03 which the respondent has put into execution in E.P.No.6 of 2009 in the court of learned Sub Judge, Tirur. As per Ext.P9, proclamation schedule notice of which was admittedly given to the petitioner, the decree debt is Rs.3,97,674/-. Learned Sub Judge has fixed the upset price at Rupees Five lakhs. Contention of petitioner is that while ordering sale of the property the executing court has not taken into account Ext.P5, objection filed by the petitioner/judgment debtor on 07.07.2009 as to the value of the property and that to realise the decree debt it is not necessary to sell the entire property. Learned counsel for respondent contends that at the time the upset price was fixed there was no suggestion from the petitioner/judgment debtor and that in the presence of counsel for petitioner the executing court has fixed upset price of Rupees Five lakhs which is more than the debt due under the decree. It is the submission of learned counsel that after Ext.P5, petitioner has preferred Ext.P8, application for adjournment of sale where there was no objection regarding upset price or the proposal to sell the entire property but the request was only to WP(C) No.33949/2009 2 grant two months' time to discharge the liability. It is true that in Ext.P5, objection petitioner has raised a contention that property proposed to be sold is worth Rs.1,50,000/- per cent, it takes in 8 ½ cents and a terraced building and its market value is Rs.20 lakhs. It is stated that sale of three cents is sufficient to discharge the decree debt. But petitioner has not adduced any evidence regarding market value of the property. It is not shown that since the total extent of property is only 8 ½ cents and takes in a terraced residential building, piecemeal sale of the property is possible. I find from proceedings of the executing court that when the upset price was suggested by counsel for respondent/decree holder as Rupees Five lakhs, there was no objection from the counsel for petitioner and no alternative suggestion regarding upset price was also made. Learned counsel has referred to me the decision in George v. Shirley Varkey (2009 (2) KLT 30) where it has been held that the procedural requirement under Order 21 Rule 64 of the Code of Civil Procedure (for short, “the Code”) to ascertain whether sale of whole of attached property of judgment debtor or a portion alone is sufficient to discharge the decree debt is mandatory. The total extent of land even according to the petitioner is only 8 ½ cents and admittedly there is a residential building in it. There is absolutely no evidence to show that the property would fetch the value suggested by the petitioner or, even something near about that. It is seen that though Ext.P5, objection is dated 07.07.2009 petitioner filed Ext.P8, application on 16.10.2009 requesting time for payment of the decree debt and seeking adjournment of the sale. In such a situation petitioner cannot successfully contend that Rule 64 of WP(C) No.33949/2009 3 Order 21 of the Code is violated and hence Ext.P4, order is vitiated. Having regard to the facts and circumstances and considering the upset price fixed by the executing court without any objection or alternative suggestion from the petitioner I do not find reason to interfere with Ext.P9, order. 2. At this stage learned counsel for petitioner has requested six months' time to discharge the decree debt. I have heard learned counsel for respondent on the request. Having regard to the circumstances stated I am inclined to grant six months' time to the petitioner to discharge the decree debt but subject to conditions. Resultantly this Writ Petition is dismissed. But petitioner is granted six months' time from this day to discharge the decree debt subject to the following conditions: i. Petitioner shall pay/deposit in the executing court for payment to respondent the entire balance amount due under the decree in six equal monthly installments beginning from 01.06.2010. The amount deposited by the petitioner as aforesaid can be withdrawn by the respondent. ii. In case there is any two default in payment of the monthly installments, it will be open to the respondent/decree holder to proceed with execution pursuant to Ext.P9, order. WP(C) No.33949/2009 4 iii. As to the balance amount payable to the respondent as per decree, it will be open to either or both parties to file statements in the executing court in the course of proceedings. iv. Petitioner shall on or before 01.06.2010 file statement in the executing court waiving fresh proclamation for sale during the said period of six months. THOMAS P.JOSEPH, Judge. cks