IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 25TH JULY 2008 / 3RD SRAVANA 1930 WP(C).No. 22583 of 2008(L) ----------------------------- AGAINST THE ORDER IN EP.82/2004 IN OS.14/2002 of SUB COURT, TIRUR .................... PETITIONER: -------------- SARADA, W/O ACHUTHAN AGED 68 YEARS, ADIMOOLI THARAYIL HOUSE, P.O.VTTAMKULAM, PONNANI TALUK. BY ADV. SRI.A.M.BABU RESPONDENTS: ----------------- 1. THE DHANALAKSHMI BANK LTD. REPRESENTED BY ITS MANAGER. PONNANI BRANCH. 2. A.MOHANAN, S/O ACHUTHAN, AGED 52 YEARS, ADIMOOLI THARAYIL HOUSE, P.O. VATTAMKULAM, PONNANI TALUK. 3. A.SASI, S/0 ACHUTHAN, AGED 42 YEARS, ADIMOOLI THARAYIL HOUSE, P.O.VATTAMKULAM, PONNAI TALUK. 4. A.RATHI D/O.ACHUTHAN, AGED 39 YEARS, ADIMOOLI THARAYIL HOUSE, P.O.VATTAMKULAM, PONNANI TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/07/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.22583 of 2008 ------------------------------- Dated this the 25th July, 2008. J U D G M E N T Petitioner is one of the respondents in E.P.No.82 of 2004, impleaded as legal heirs of the original judgment debtor. Execution Petition was filed by first respondent for realisation of the decree debt in O.S.No.14 of 2002 by sale of the properties. This petition is filed under Article 227 of the Constitution of India contending that even though value of the property is Rs.9 lakhs, the upset price fixed by the court under Ext.P2 sale proclamation is Rs.1,92,000/=, and, therefore, sale proceedings is to be quashed. 2. The learned counsel appearing for the petitioner and learned counsel appearing for first respondent, decree holder, were heard. 3. Ext.P1 objection filed by the judgment debtor to the draft sale paper shows that they have specifically contended that the value of the property per cent is Rs.50,000/= to Rs.60,000/=, and the total value of the property will be Rs.9 lakhs. After the amendment to the code of Civil Procedure by Amendment Act 1 of 1976, W.P.(C) No.22583 of 2008 2 executing court has no duty to fix the upset price. Executing court need not enter its own estimate of the value of the property to be sold. Instead second proviso to sub-rule (2) of Rule 66 of Order XXI of Code of Civil Procedure mandates that the proclamation shall include the estimate of value of the property, if any, claimed by the judgment debtor also in the sale proclamation. As Ext.P2 does not show the estimate of the value of the property claimed by the judgment debtor, Ext.P2 is quashed to that extent. Executing Court is directed to proclaim the sale afresh, after directing the decree holder to show the estimate of the value of the property, as claimed by the judgment debtors in Ext.P1 objection. Writ petition is disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE nj.