IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 14537 of 2007(E)
1. DAISY JOSEPH @ DAISY JOJO ,
... Petitioner
2. RESHMA JOSEPH (MINOR),
Vs
1. THE MANAGER,
... Respondent
For Petitioner :SRI.GIGIMON ISSAC
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :30/05/2007
O R D E R
M.N.KRISHNAN, J.
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WP(C)No.14537 OF 2007 E
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Dated this the 30th May, 2007.
JUDGMENT
This writ petition is filed seeking to stay the
execution proceedings before the Principal Sub Court,
Ernakulam and to pass orders in Ext.P3 petition. The
decree holder bank has obtained a mortgage decree against
the husband of the first petitioner. It is contended that
the husband of the first writ petitioner is unheard of for
more more than seven years and the first petitioner along
with others had instituted a suit for a declaration that if
it happens to be decreed they will be entitled to relief in
the case. The husband of the first writ petitioner was an
employee of the decree holder bank and he had availed loan
and on default of payment of the loan a suit was filed for
realisation of the amount. It is contended that the
whereabouts of the husband is not known for more than seven
years and F.I.R has been lodged in the year 1998, Now she
has filed Ext.P3 application to consider her objections.
2. Since it is a mortgage decree, even if she is
entitled to right over the property whether she can file
such an application is a matter to be considered by the
court after hearing both sides. It is also contended that
the estimated price for the property is grossly inadequate
WPC 14537/2007 2
and the writ petitioners will be in the street if this
property is sold. It is incumbent upon the court as well
to fix a proper upset price and only to sell the property
that may be necessary for the realisation of the decree
debt. So these are all matters which has to be considered
in a case of this nature. Therefore, I am inclined to
dispose of the writ petition as follows:-
i) The executing court is directed to consider Ext.P3
application after giving due notice to the decree holder
and pass appropriate orders on the same.
ii) The executing court also may find out whether the
proper upset price is fixed for the property and the entire
property is necessary for discharge of the decree debt.
The sale which is posted for today shall stands deferred.
The writ petitioners are directed to pay an amount of
Rs.25,000/- (Rupees twenty five thousand only) on or before
11.6.2007.
Writ petition is disposed of accordingly.
M.N.KRISHNAN
Judge
jj