IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 WP(C).NO. 10199 OF 2010(O) ---------------------------------------- AGAINST THE ORDER DATED IN E.P. 38/2008. IN ARC.1103/2007 OF SUB COURT, QUILANDY .................... PETITIONER(S): --------------------- 1. VADAKKE RAYAROTH BHASKARAN NAIR, S/O. UKKARAN NAIR, AGED 52 YEARS, OCCUPATION 'NIL', AVALA AMSOM, KUTTOTH DESOM,KOYILANDY TALUK KOZHIKODE DISTRICT, KERALA STATE. 2. VADAKKE RAYAROTH DEVAKI AMMA, D/O. KUNHIRAMAN NAIR, AGED 45 YEARS, HOUSEWIFE, AVALA AMSOM, KUTTOTH DESOM,KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT(S): ----------------------- THE SECRETARY, CO-OPERATIVE HOUSING SOCIETY, MEPPAYUR. ADV. SRI.K.LAKSHMINARAYANAN FOR R1 SMT.SATHYA SHREEPRIYA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE EXECUTION PETITION. EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION FILED BY THE DECREE HOLDER FOR ISSUE OF A COMMISSION. EXHIBIT P3 TRUE COPY OF THE REPORT FILED BY THE COMMISSIONER. EXHIBIT P4 TRUE COPY OF THE DRAWING ACCOMPANYING EXHIBIT P3 REPORT FILED BY THE COMMISSIONER. EXHIBIT P5 TRUE COPY OF THE OBJECTION FILED BY THE WRIT PETITIONERS. RESPONDENT'S EXHIBITS: ----------------------------------- EXHIBIT R1 TRUE COPY OF THE AWARD IN ARC NO.1103 OF 2007 DATED 29.10.2007 ON THE FILE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETY, KOZHIJKODE. TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.10199 of 2010 ==================================== Dated this the 16th day of June, 2010 J U D G M E N T Order dated 01.03.2010 passed by the learned Sub Judge, Koyilandy in E.P. No.38 of 2008 in ARC No.1103 of 2007 fixing upset price for the property to be at Rs.4,00,000/- and directing proclamation and sale of the entire property is under challenge in this Writ Petition. According to the petitioners, the Advocate Commissioner appointed in the court below inspected the property under mortgage and has submitted a report and plan. Contention of petitioners is that for realisation of amount due under the decree it is sufficient that plot A marked by the Advocate Commissioner in Ext.P4, plan is sold. Learned counsel invited my attention to the report of Advocate Commissioner where it is stated that the land is worth Rs.25,000/- per cent, that plot A1 is 15 cents in extent and sale of which is sufficient to discharge the liability. According to the learned counsel there is sufficient provision in Order XXXIV Rule 4 of the Code of Civil Procedure (for short, “the Code”) which permitted executing court to sell a portion of the property for realisation of the amount even if it is the W.P(C) No.10199 of 2010 -: 2 :- mortgaged property. Learned counsel for respondent has placed reliance on Dhanalakshmi Bank Ltd. v. Divakaran (2000 [2] KLT 231) to contend that since the property brought up for sale is mortgaged to the respondent question of piece-meal sale as claimed by petitioners did not arise. 2. Order XXXIV Rule 4 of the Code dealing with preliminary decree in a suit for sale states that in the suit if the plaintiff succeeds court shall pass a preliminary decree directing payment of the amount and further that in case of default, plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold and the sale proceeds be paid into court. Under Order XXI Rule 64 of the Code executing court may order that any property attached by it and liable to sale or such portion thereof necessary shall be sold and that proceeds of such sale or a sufficient portion thereof shall be paid to the party entitled under the decree. In the decision relied on by the learned counsel for respondent it was a case where sale of mortgaged property was challenged on the ground that piece meal sale of the property ought to have been done. A Division Bench of this Court held that at the stage of an application under Order XXI Rule 90 of the Code, judgment debtor W.P(C) No.10199 of 2010 -: 3 :- cannot challenge the sale on the ground that executing court could or should have directed sale of a portion of the mortgaged property. In paragraph No.6 it is stated that except the report of the Advocate Commissioner there was nothing on record to show valuation of property as claimed by the judgment debtor and that report of Advocate Commissioner without assistance of an expert valuer by itself was not sufficient. In paragraph No.11 it is observed that sale in that case was on the basis of a decree for sale in a suit on mortgage and the decree directed recovery of amount due by sale of the mortgaged property and hence judgment debtor had no reason to complain that the sale is invalid as entire property was sold. According to the learned counsel for respondent in so far as the decree in this case does not provide for sale of a portion of the mortgaged property petitioners cannot contend that executing court ought to have directed sale of a portion of the property. The Supreme Court in Sai Enterprises v. Bhimreddy Laxmaiai and Another (2007) 13 SCC 576) referring to execution and sale of mortgaged property stated in paragraph No.7 that grievance of appellant (therein) about non-compliance with the requirements of Order XXI Rule 64 of the Code is on sound footing and proceeded to W.P(C) No.10199 of 2010 -: 4 :- consider Order XXI Rule 64. It was observed that power cast on the court to sell such portion thereof as is necessary to satisfy the decree is a mandate of the Legislature which cannot be ignored. In view of that decision learned counsel for petitioners is justified in his contention that executing court has to consider whether sale of a portion of the property will be sufficient to discharge the decree debt. 3. I have gone through Ext.P4, sketch prepared by the Advocate Commissioner. There the property has been divided into different plots. It is not disputed that the house of petitioners is situated in plot B and that plot B1 is the pathway leading to plot B. Plot A1 has an extent of 15.4 cents. As per Ext.P4, plots A, A1, A2 and A3 can be sold. It is true that Advocate Commissioner was not assisted by an Expert valuer for valuing the property. But in the case reported in Dhanalakshmi Bank Ltd. v. Divakaran (supra) since sale had already taken place there was no scope for ascertaining the value to decide whether sale of a portion of the property was sufficient to discharge the decree debt. In this case by attempting to sell plot A1 it could be ascertained whether the amount due under the decree can be satisfied. If sale of that plot is not sufficient it is open to the W.P(C) No.10199 of 2010 -: 5 :- executing court to proclaim and sell plots A, A2 and/or A3 as circumstances warranted. 4. Having regard to the facts and circumstances I am inclined to accept the contention of learned counsel for petitioners. In the circumstances Ext.P1, order dated 01.03.2010 to proclaim and sell the entire property cannot be upheld and is liable to be set aside. Resultantly, Writ Petition is allowed. Order passed by the executing court on 01.03.2010 is set aside. It is open to the respondent to bring plot A1 in Ext.P4, plan for sale. In case sale of that property is not sufficient to discharge the decree debt or there is no bidder for the said item or sale of that item alone is proved to be impracticable for any reason it will be open to the respondent to bring plots A, A2 and/or A3 for sale for the amount due under the decree. THOMAS P. JOSEPH, JUDGE. vsv