IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 WP(C).NO. 27911 OF 2010(O) ---------------------------------------- AGAINST THE ORDER IN EA 204/2008 IN EP 1600/04 IN OS.2516/2001 OF PRL.MUNSIFF COURT,THRISSUR .................... PETITIONER(S): ---------------------- K.P.ELIAS, AGED YEARS, S/O.PATHROSE, KALLINGAL HOUSE, CHERUMKUZHY DESAM, MULAYAM VILLAGE, THRISSUR TALUK. BY ADV. SRI.C.V.MANUVILSAN SRI.P.G.SURESH SMT.K.VIDYA RESPONDENT(S): ------------------------- SOUMIA KURIES AND LOANS(P)LTD THRISSUR PO, THRISSUR DISTRICT,PIN 680 001. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.27911 of 2010 ==================================== Dated this the 08th day of September, 2010 J U D G M E N T Petitioner, judgment debtor in E.P. No.1600 of 2994 in O.S. No.2516 of 2001 of the court of learned Munsiff, Thrissur suffered a money decree and in execution of that decree 50.50 cents of land and allegedly a house situated thereon belonging to the petitioner was sold in court auction for Rs.1,11,652/- according to the petitioner, fixing upset price of Rs.50,000/- at a time market value of the property was Rs.50 lakhs. Petitioner states that there is total non-compliance of Rule 64 of Order XXI of the Code Civil Procedure (for short, “the Code”) in that executing court did not apply its mind to find out the real market value of the property and whether sale of a portion of the property would be sufficient to discharge the decree debt and hence the sale is void. Petitioner states that property is ordered to be delivered as per order on E.A. No.204 of 2008. Hence this Writ Petition to quash Ext.P2, sale certificate as illegal and for a direction to the executing court to reconsider the matter afresh. Learned counsel has taken me through various decisions which according to learned counsel W.P(C) No.27911 of 2010 -: 2 :- would show that a sale conducted without the executing court applying mind under Rule 64 of Order XXI of the Code is a nullity as executing court has jurisdiction only to sell so much of the property sufficient to satisfy the decree debt. 2. It is seen that the impugned sale was held on 20.11.2006 and confirmed on 23.01.2007. Petitioner has not moved any application in the executing court to set aside the sale be it under Sec.47 or under Rule 90 of Order XXI of the code as circumstances warranted. In that situation petitioner cannot straight away come to this Court invoking jurisdiction under Article 227 of the Constitution and seek to set aside Ext.P2, sale certificate. In that view of the of the matter I do not find reason to interfere. Resultantly, Writ petition is dismissed without prejudice to other rights if any of the petitioner to challenge the impugned sale and sale certificate as provided under law. THOMAS P. JOSEPH, JUDGE. vsv