IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 WP(C).NO. 11410 OF 2010(O) ---------------------------------------- OS.129/2007 OF ADDL.SUB COURT, NORTH PARAVUR .................... PETITIONER(S): ----------------------- 1. ROSY POULOE, W/O. POULOSE, KADAPPURATH HOUSE, NEDUMBASSERY, ALUVA, ERNAKULAM DISTRICT. 2. JANCY, D/O.POULOSE, KADAPPURATH HOUSE, NEDUMBASSERY, ALUVA, ERNAKULAM DISTRICT. 3. SHAJI, D/O. POULOSE, KADAPPURATH HOUSE, NEDUMBASSERY, ALUVA, ERNAKULAM DISTRICT. 4. SHEEBA, D/O. POULOSE, KADAPPURATH HOUSE, NEDUMBASSERY, ALUVA, ERNAKULAM DISTRICT. 5. SHIJU, S/O. POULOSE, KADAPPURATH HOUSE, NEDUMBASSERY, ALUVA, ERNAKULAM DISTRICT. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S): ---------------------------- 1. RATNAKUMAR, S/O. ARAVINDAKSHAN, 'SREYAS', CHOORNIKKARA, ALUVA WEST VILLAGE, ALUVA, ERNAKULAM DISTRICT. 2. PALLI, S/O. CHATHAN, SWAMY SADANAM, KANNIYAMBURAM, OTTAPPALAM, PALAKKAD DISTRICT. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR R1 & 2 SRI.P.B.KRISHNAN FOR R1 & 2 SMT.GEETHA P.MENON FOR R1 & 2 SRI.P.M.NEELAKANDAN FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.12A9 OF 2007 ON THE FILE OF THE FIRST ADDITIONAL SUB COURT, NORTH PARAVUR DATED 12.03.2007. EXHIBIT P2 TRUE COPY OF OBJECTION FILED BY THE PETITIONERS IN E.P. NO.156 OF 2009 IN O.S. NO.129 OF 2007 DATED 6.11.2009. EXHIBIT P3 TRUE COPY OF THE SALE NOTICE ISSUED BY THE FIRST ADDITIONAL SUB COURT, NORTH PARAVUR DATED 28.01.2010. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.11410 of 2010 ==================================== Dated this the 01st day of June, 2010 J U D G M E N T Writ Petition is in challenge of Ext.P3, sale notice on the ground that actual value of property is not incorporated in the said sale notice and that to realise decree amount it is not necessary to sell entire property. Petitioners entered into an agreement with respondents for sale of 51.149 cents and a residential building thereon for consideration at the rate of Rs.1,10,000/- per cent. It is not disputed that petitioners received a substantial portion of the sale consideration by way of advance. The agreement could not be carried out. Respondents filed O.S. No.129 of 2007 for specific performance of the agreement or in the alternative for recovery of Rs.58,82,215 with interest. Parties settled the dispute and accordingly a compromise decree for realisation of Rs.52,50,000/- was passed in favour of respondents. That decree was put in execution and the very same property which petitioners had agreed to sell was brought for sale. In the proclamation schedule value of property is stated as Rs.50,00,000/-. According to the petitioners that is not a properly W.P(C) No.11410 of 2010 -: 2 :- estimated value of property and according to them the property is worth Rs.4,14,19,200/- including the building thereon. Learned counsel for petitioners contends that it was sufficient to sell a portion of the property to realise decree debt. Learned Senior Advocate appearing for respondents would contend that till now no amount has been paid by petitioners which itself indicate lack of bona fides on the part of petitioners. Further contention is that proclamation schedule contained value of the property as estimated by petitioners also and hence objection in that line cannot stand. According to the learned Senior Advocate it was for petitioners to show that piecemeal sale of the property is possible and that sale of a portion of the property would fetch the decree debt. 2. It is seen from Ext.P3, order that value of property estimated by petitioners is also incorporated in the proclamation schedule and hence there is no scope for any objection in that line. 3. Then the next question is whether sale of a portion of the property is sufficient to discharge the decree debt. In that regard as it now stands there is no data to decide that. Hence I am inclined to give petitioners an opportunity to show that sale of a portion of the property is sufficient to realise the decree debt W.P(C) No.11410 of 2010 -: 3 :- but on terms. It will be open to the petitioners to take out a Commission to assess value of the property and report whether a portion of the property could be conveniently sold and that would be sufficient for realisation of the decree debt. Resultantly, Writ Petition is allowed on condition that petitioners deposited in the executing court for payment to respondents Rs.10,00,000/- (Rupees Ten lakhs only) within three weeks from this day. In case of non-compliance this Petition will stand dismissed in confirmation of Ext.P3, order. In case condition for deposit is complied, Ext.P3, order will stand set aside and petitioners will get an opportunity to take out a commission to inspect the property, assess its value and report whether it is sufficient to sell a portion of the property to discharge balance amount due under the decree. Executing court shall expedite the proceeding in case condition regarding deposit is complied within the period stated above and steps are taken to issue a commission. THOMAS P. JOSEPH, JUDGE. vsv