IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 25TH JULY 2008 / 3RD SRAVANA 1930 W.P(C).No. 23772 of 2005(E) -------------------------- PETITIONER: ----------- STATE BANK OF TRAVANCORE, PUTHUKKAD BRANCH, THRISSUR DISTRICT REPRESENTED BY ITS BRANCH MANAGER. BY ADV. SRI.SATHISH NINAN RESPONDENTS: ------------- 1. SAJITH, S/O. PUZHANKARA RAMACHANDRA MENON, `SINDOORAM', POOMKUNNAM VILLAGE, THRISSUR TALUK. 2. JOY JOHN, S/O. VARIKKASSERY YOHANNAN, MUTHRATHIKKARA DESOM, PARAPPUKKARA VILLAGE. 3. YOHANNAN, S/O. VARIKKASSERY OUSEPH, MUTHRATHIKKARA DESOM, PARAPPUKKARA VILLAGE. BY ADV. SRI.JOHN VARGHESE - R1 SRI. C.A. CHACKO - R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 23772/ 2005 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE COPY OF E.P NO. 325/2001 IN O.S. NO.625/1993 FILED BEFORE THE SUB COURT, IRINJALAKUDA. EXHIBIT P2 : TRUE COPY OF THE APPLICATION E.A. NO.581 OF 2004 IN E.P. NO.325 OF 2001 FILED BY THE FIRST RESPONDENT BEFORE THE SUB COURT, IRINJALAKUDA. EXHIBIT P3 : TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO E.A. 581 OF 2004. EXHIBIT P4 : A TRUE COPY OF THE ORDER DATED 13/07/2005 IN E.A. 581 OF 2004 IN E.P.NO.325 OF 2001 IN O.S. NO.625 OF 1993 OF THE PRINCIPAL SUB JUDGE, IRINJALAKUDA. /TRUE COPY/ P.A. TO JUDGE scm M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.23772 of 2005 ------------------------------- Dated this the 25th July, 2008. J U D G M E N T Petitioner is the decree holder in O.S.No.625 of 1993 on the file of Sub Court, Irinjalakuda. E.P.No.325 of 2001 was filed for realisation of the decree debt by sale of the mortgaged property. First respondent is the decree holder in O.S.No.728 of 1996. The property was attached before judgment. The execution petition was filed for sale of the attached property. This petition is filed under Article 227 of the Constitution of India challenging Ext.P4 order passed by the executing court in E.A.No.581 of 2004, an application filed by the first respondent for rateable distribution. Learned Sub Judge directed sale of the mortgaged property with a direction to distribute the sale proceeds rateably among the petitioner and the first respondent. 2. The learned counsel appearing for the petitioner and learned counsel appearing for first respondent were heard. W.P.(C) No.23772/2005 2 3. The first respondent submitted that debt due to the petitioner has been paid. The learned counsel for the petitioner submitted that only a portion of the decree debt was paid and balance is yet to be paid. It is admitted case that the decree obtained by the petitioner is a mortgaged decree, while the decree in favour of the first respondent is a simple money decree. In such circumstances, when the mortgaged property is to be sold and direction is given for distribution among the decree holders, first the debt due under the mortgage decree is to be satisfied and only the balance is payable to the first respondent. 4. In such circumstances, Ext.P4 order is modified directing sale of the mortgage property and distribution of the sale proceeds among the decree holders in O.S.No.625 of 1993 and O.S.No.728 of 1996. But the decree debt due to the petitioner in O.S.No. 625 of 1993 is to be satisfied first and the balance is to be paid to the first respondent. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.