IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 WP(C).No. 5599 of 2008(N) ------------------------------------- PETITIONER: ------------------- I.J.THOMAS,S/O.JOSEPH AGED BAOUT 62 YEARS, AGRICULTURIST ILLIKKAKUNNEL HOUSE, CHARAL P.O., THALASSERY TALUK KANNUR ,PIN 670706. BY ADV. SRI.KURIAN GEORGE KANNAMTHANAM (SR.) RESPONDENTS: ------------------------ THE FEDERAL BANK LTD BY ITS VALLITHODE BRANCH REP. BY BRANCH MANAGER KANNUR DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 5599 OF 2008 --------------------- Dated this the 18th day of February, 2008 JUDGMENT This writ petition is filed with a prayer to quash Ext.P4. A perusal of the writ petition would reveal that the decree holder bank has obtained a mortgage decree against the judgment debtor and it consists of three items of property having an extent of 2 acres, 80 cents and 61 cents. The court below fixed the upset price for item No.1 at Rs.2,60,000/-, item No.2 at Rs.80,000/- and item No.3 at Rs. 60,000/-. 2. Learned counsel for the petitioner now contends that a portion of the property, if sold, would be sufficient to realise the decree debt. But, I feel that such a contention cannot be allowed to be raised at this stage in the light of the decision reported in Dhanalakshmi Bank Ltd. v. Divakaran [2000 (2) KLT 231] wherein this court held that unless the decree provides for sale of a portion of the property in a mortgage decree, the execution court cannot go beyond the decree and order to sell a portion of the property. So the said contention cannot be accepted. 3. The next question to be considered is with regard to the WPC NO 5599/08 2 value of the property. It is true that though a very detailed counter statement is filed by the judgment debtor, they have only stated that the centage value of the property is very high considering the market rate of the land in the locality. The total extent of the property comes to 3 acres and 41 cents and the upset price fixed is about Rs.4 lakhs. I think the court has to apply its mind while fixing the value of the property and for that purpose atleast the judgment debtor should submit what is the rate of the property per cent. It is a well settled principle that the properties cannot be sold for a meager value if it really worth more than what is shown. 4. Therefore, I permit the writ petitioner herein to file an additional counter whereby he can raise a contention regarding the value of the property, which according to him is correct. The court below can either fix the upset price or show the valuation estimated by the judgment debtor in the sale proclamation as provided under Order XXI Rule 72 of the CPC. But if the sale is to be effected under Order XXI Rule 72(A) of the CPC where permission is to be granted to the decree holder then necessarily the reserve price has to be fixed which shall not be less than the decree amount. That factum also has to be considered by the court. WPC NO 5599/08 3 Therefore, I direct the court below to defer the sale, which is posted on 20.2.08, to permit the writ petitioner herein to file additional objections, if any, hear the case, fix appropriate price and then dispose of the matter in accordance with law. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 5599/08 4