IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 WP(C).No. 25663 of 2008(E) -------------------------- AGAINST THE ORDER DATED / / IN EP 233/2007. IN ARC.273/2004 of MUNSIFF COURT, QUILANDY .................... PETITIONER: ------------ KUNIYIL T.K. MEENAKSHI, ANANTHANKANDY, THURUTHIAD DESOM, BALUSSERY AMSOM, KOYILANDY TALUK. BY ADV. SRI.K.I.MAYANKUTTY MATHER SRI.P.P.RAMACHANDRAN RESPONDENTS: ------------- REGIONAL CO-OPERATIVE BANK, BASUSSERY, KOYILNADY TALUK, REPRESENTED BY ITS SECRETARY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.25663 of 2008 ------------------------------- Dated this the 26th August, 2008. J U D G M E N T Petitioner is the judgment debtor in E.P.No.238 of 2008, on the file of Munsiff Court, Koyilandy. That petition was filed for realisation of the debt due under award in ARC.No.273 of 2004. Ext.P2, copy of the execution petition, shows that petitioner appeared through a counsel before the executing court on 29.9.2007 and it was posted for objection. But he did not file an objection, and finally, petitioner was set ex parte on 10.12.2007. As no objection was filed to Rule 66 notice and no payment was made, property was proclaimed for sale. Ext.P2 shows that as there was no bidders, the upset price was reduced on more than two occasions and thereafter it stood posted for sale to 3.6.2008. As there was no bidders, execution petition was thereafter posted for steps to 26.6.2008. On 19.7.2008, executing court directed proclamation and sale of the property to 26.8.2008. This petition is filed under Article 227 of Constitution W.P.(C) No.25663 of 2008 2 of India contending that the proclamation for sale beyond a period of 30 days is illegal, and therefore, the order for sale is to be quashed. 2. Learned counsel appearing for the petitioner argued that petitioner is entitled to the benefit provided under the circulars issued by the Co-operative Department, and in such circumstances, a direction is to be issued to the executing court to postpone the sale. Learned counsel further argued that as the sale is posted to 26.8.2008, on 19.7.2008, it is in violation of the provisions of rule 69 of Order XXI of Code of Civil Procedure, and therefore, the order is to be quashed. 3. Rule 69 of Order XXI of Code of Civil Procedure provides for the adjournment or stoppage of the sale. It provides for adjournment of sale posted for sale after proclamation. Sub-rule (2) provides that if a sale is adjourned for a longer period than 30 days, a fresh proclamation as provided under Rule 67 is to be made. Rule 67 provides for mode of making proclamation. Rule 68 provides for the time of sale. The only limitation provided under Rule 68 is that a sale shall not take W.P.(C) No.25663 of 2008 3 place in case of immovable properties, before the expiration of at least 15 days from the date of proclamation of sale, unless it is consented to in writing by the judgment debtor. There is no illegality in posting the execution petition for sale for a period beyond 30 days by directing fresh proclamation. Rule 69 deals with adjournment of a case posted for sale and under sub-rule (2), if the sale is to be adjourned beyond a period of 30 days, a fresh proclamation is to be made, unless the judgment debtor waives that right. Therefore, on the ground that sale is posted to 26.8.2008 by directing fresh proclamation on 19.7.2008, it cannot be said that it is in violation of the provisions of Rule 69 of Order XXI of Code of Civil Procedure, as canvassed by the petitioner. Therefore, on that ground, the order cannot be set aside. 4. The learned counsel then submitted that entire property need not be sold and only that portion which is necessary to procure the decree debt need be sold, as provided under Rule 54. Petitioner though appeared before the execution court did not file an objection to Rule 66 notice. Therefore petitioner is not entitled to approach this Court by filing a W.P.(C) No.25663 of 2008 4 petition under Article 227 of the Constitution of India, to set aside the order for sale on the ground that only a portion of the property need be sold, when such a contention was not taken before the executing court. 5. If the petitioner pays a portion of the decree debt and applies to the executing court for adjournment of sale, executing court to adjourn the sale. If the adjournment is for a period beyond 30 days is to be granted. Petitioner has to file an affidavit waiving fresh proclamation as provided under sub-rule (2) of Rule 69 of Order XXI of Code of Civil Procedure. If the sale is so adjourned, petitioner is at liberty to file objection contending that entire property need not be sold claiming benefit, if any, under the circulars, and court in that case, has to consider whether it is necessary to sell the entire property and then direct sale. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.