IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 WP(C).No. 4698 of 2008(H) ------------------------- OS.353/1998 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER: ------------ BRILLIAN DAS, S/O.HRIDAYADAS MAVILAKATH HOUSE, OLD RAILWAY STATION ROAD KOCHI-18. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. SRI.VINEETH KURIAKOSE RESPONDENTS: ------------- 1. UNION BANK OF INDIA CONVENT ROAD JUNCTION BRANCH, M.G.ROAD ERNAKULAM, REP. BY ITS BRANCH MANAGER. 2. AGNES HRIDAYADAS, W/O.S.HRIDAYADAS PARTNER, THREE STAR TYRE RESOLING COMPANY OLD RAILWAY STATION ROAD, ERNAKULAM, KOCHI-18. 3. LATHIKA MONAI, D/O.HRIDAYADAS MAVILAKATH HOUSE, OLD RAILWAY STATION ROAD ERNAKULAM, KOCHI-18. 4. THREE STAR TYRE RESOLING COMPANY OLD RAILWAY STATION ROAD, ERNAKULAM, KOCHI-18. 5. VIMALA, D/O.HRIDAYADAS MAVILAKATH HOUSE, OLD RAILWLAY STATION ROAD ERNAKULAM, KOCHI-18. 6. SATHI, D/O.HRIDAYADAS -DO- R1 BY SC, SRI. A.S.P. KURUP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 4698 OF 2008 --------------------- Dated this the 8thday of February, 2008 JUDGMENT This writ petition is preferred to quash Ext.P6 proclamation, to defer the sale and to consider the objections raised by the petitioner. The decree holder Bank has obtained a decree whereby the amount is directed to be realised from the defendants and their assets and also by sale of the plaint schedule property. 2. Learned counsel for the writ petitioner raises an initial objection to the effect that being a mortgaged decree, the property has to be proceeded against first, before proceeding against the other properties or personally against the defendants. If it is a mortgaged decree, the contention of the learned counsel is totally acceptable. In this case the decree does not show that it is a mortgaged decree. It is only stated that the amount can be realised from the defendants, their assets and also against the property described in the plaint schedule. I do not want to elaborate on that point further. 3. The second point raised by the learned counsel appears to be persuasive enough which requires adjudication. The property that is attempted to be sold is the share of the mother. Admittedly, the mother is having only one half right over the property sought to be sold. When publication was effected it was not revealed. So the intended purchasers WPC NO 4698/08 2 do not have proper information regarding the right of the party over the property, which is intended to be sold. It goes into the root of the matter and therefore a fresh proclamation is necessary. It is also submitted that the parties are attempting to settle the matter. Learned counsel for the writ petitioner would submit that his client will be pursuing the Bank to give some reduction and then to wipe off the liability. It can be pursued. Therefore, I direct the court below not to proceed with the sale on 13.2.08. I further direct the writ petitioner to make some payment within a period of three weeks from today and in the meanwhile attempt to negotiate and settle the matter and in case the matter is not settled, the court below can direct the decree holder to make a fresh draft proclamation, finalise it after hearing the objections of the judgment debtor and then order for sale in accordance with law. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 4698/08 3