IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 17284 of 2007(G)
1. P.P.AYISHAKUTTY, W/O. LATE AHAMEDKOYA
... Petitioner
Vs
1. THE STATE BANK OF INDIA,
... Respondent
2. P.P.SHABEER, S/O. LATE AHMEDKOYA HAJI,
For Petitioner :SRI.K.M.FIROZ
For Respondent :SRI.R.S.KALKURA
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :18/06/2007
O R D E R
M.N.KRISHNAN, J.
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WP(C)No. 17284 OF 2007 G
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Dated this the 18th June, 2007.
JUDGMENT
This writ petition is filed seeking to quash Exts.P5
and P6 orders. The plaintiff obtained a decree in
O.S.165/01. When the decree was put into execution he
found that though there was a prayer for realisation of the
amount by sale of the mortgaged property it was not
incorporated in the decree. Therefore, moved an
application under Section 152 of the Code of Civil
Procedure to correct it. Learned counsel for the decree
holder placed before me for perusal the prayer in the
plaint. The prayer in the plaint is very clear that it
must be a decree for realisation of the amount personally
as well as by sale of the property mortgaged. So, it was
only an omission done by the court at the time of drafting
the decree and therefore the trial court has not committed
any error in allowing the amendment for a charge decree.
The next point is regarding execution. It is submitted by
the learned counsel that 60 cents of property is involved
and the land value in Koduvally town is high and that a
sale of portion of the property will be sufficient for
discharging the decree debt. On the other hand learned
counsel for the decree holder would submit that being a
WPC 17284/07 2
mortgage decree it cannot be sold in fraction. This aspect
of the matter may be considered by the executing court
after permitting both sides to produce authorities in that
behalf and thereafter proceed to dispose of the property in
accordance with law. Till a decision is taken on the said
point the sale shall be deferred. Writ petition is
disposed of accordingly.
M.N.KRISHNAN
Judge
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