IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 21ST JANUARY 2008 / 1ST MAGHA 1929 WP(C).No. 22738 of 2005(F) --------------------------------------- OS.328/1998 OF PRL.SUB COURT,THRISSUR .................... PETITIONERS: --------------------- 1. SAJEEV N.A.S., AGED 31 YEARS, S/O.SANKARANARAYANAN, NADUPARAMBIL ALAKKAL HOUSE, THALIKULAM P.O., THRISSUR-680 569. 2. SATHYAN N.A.S., AGED 38 YEARS, S/O.SANKARANARAYANAN, NADUPARAMBIL ALAKKAL HOUSE, THALIKULAM P.O., THRISSUR-680 509. BY ADV. SRI.SHOBY K.FRANCIS. RESPONDENTS: ------------------------ 1. THE STATE BANK OF TRAVANCORE, THRISSUR MAIN BRANCH, REPRESENTED BY ITS CHIEF MANAGER. 2. M.K.RAVINDRAN, S/O.M.R.KARAPPAN, MUNDAVAGATTIL HOUSE, CHAZHUR P.O., THRISSUR. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.22738 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of January, 2008 JUDGMENT This writ petition is filed under Article 226 of the Constitution. Petitioners are judgment debtors 4 and 5. The first respondent obtained a decree against the petitioners and also the second respondent. Second respondent is the principal debtor. Petitioners challenge Ext.P4 and seek a mandamus directing the court below to proceed first against the principal debtor personally and his properties including plaint A schedule vehicle. According to the petitioners, the first respondent has obtained a charge decree. Plaint A schedule is the bus belonging to the second respondent and the petitioners as sureties have mortgaged item Nos. 2 and 3, which are B schedule. According to the petitioners, item No.2 is 1.15 cents in Anthikad Village and item No.3 is 26.18 cents with a building in Thalikulam Village. According to the petitioners they filed Ext.P3 objection. 2. It is the case of the petitioners that the decree holder should proceed against the property in respect of which there is a charge decree, namely, the bus belonging to the second respondent, who is the principal debtor. They would contend that if at all it is necessary to proceed against the property belonging to the petitioners, there was no need to sell the WPC. 22738/2005. 2 entire extent. Sale of a portion of the property in question would satisfy the decree, he contends. According to the learned counsel for the petitioners, the court below was duty bound under Order XXI Rule 64 of the Code of Civil Procedure to consider the question as to the extent of the property necessary to satisfy the decree. Even though notice has been issued and served, I find that there is no appearance for respondents 1 and 2. It is not in the region of doubt that Order XXI Rule 64 of the Code of Civil Procedure casts a duty on the part of the execution court to consider the extent of the property necessary and whether the sale of the entire property is necessary to satisfy the decree. There is no representation or objection raised by the respondents to the claim of the petitioners. In such circumstances, Ext.P4 is quashed and the matter will be reconsidered and a fresh decision will be taken on the objection of the petitioners. Communicate this judgment to the Sub Court, Thrissur. (K.M. JOSEPH, JUDGE) sb