IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 2061 of 2007(U)
1. ABRAHAM JACOB, S/O.JACOB, AGED 53,
... Petitioner
Vs
1. P.P.THOMAS, S/O.THOMAS,
... Respondent
For Petitioner :SRI.PHILIP MATHAI
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :18/01/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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W.P.(C)NO.2061 OF 2007
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DATED THIS THE 18th DAY OF JANUARY, 2007
JUDGMENT
Petitioner is judgment debtor. Respondent is decree holder. This
petition is filed under Article 227 of Constitution of India challenging
Ext.P5 order passed by executing Court for sale of attached property.
Case of petitioner is that he received only Ext.P4 notice issued by the
Court under Rule 54 directing to appear on 21.11.06 and on 21.11.06
Ext.P5 order was passed and he did not receive any notice under Rule
66 and though he filed an objection to Rule 54 notice evidenced by
Ext.P3 objection it was not considered and in such circumstances,
Ext.P5 order is to be quashed.
2. On hearing learned Counsel appearing for petitioner and
perusing Ext.P4, it is clear that executing Court directed petitioner to
appear before the Court for settlement of the terms of proclamation of
sale only on 21.11.06. On 21.11.06 an order for sale of the property
was passed.
3. The case of petitioner is that the entire attached property
need not be sold for realisation of the decree debt and only a part of
the property need be sold to satisfy the decree debt and therefore the
order is to be quashed.
W.P.(c)2061/07 2
4. Rule 64 of Order XXI of Code of Civil Procedure cast an
obligation on the Court to consider whether sale of the entire
attached property is necessary for realisation of the decree debt. It
is not a discretion. Ext.P5 order shows that before passing the
order, the provisions of Rule 64 of Order XXI was not considered.
So also the value shown by the petitioner was also not considered
as provided under sub rule 2 of Rule 66 of Order XXI of Code of Civil
Procedure. Ext.P5 order is therefore quashed.
Executing Court is directed to hear the objection of petitioner
and thereafter consider whether the entire attached property is to
be sold as provided under Rule 64 and settle the proclamation as
provided under Rule 66 and then only proceed with the sale.
Petition is disposed accordingly.
M.SASIDHARAN NAMBIAR,JUDGE
Acd
W.P.(c)2061/07 3