IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 2131 of 2007(D)
1. G.SAJI, S/O.GEORGE,
... Petitioner
Vs
1. THE MANAGER,
... Respondent
For Petitioner :SRI.D.JAYACHANDRAN
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.
...........................................
W.P.(C)No.2131 & 2132 OF 2007
............................................
DATED THIS THE 18th DAY OF JANUARY, 2007
JUDGMENT
The judgment debtor in O.S.232 of 2005 and O.S.233
of 2005 on the file of Sub Court, Kottarakkara is the
petitioner. Towards the amount due from the petitioner
under the two decrees, respondent/decree holder filed
E.P.40 of 2005 and 41 of 2005 for sale of the mortgaged
property. Petitioner filed an objection to Rule 66
notice contending that the value claimed by decree
holder is too low and giving his own value of the
property. Executing court directed sale of the
property, after fixing the upset price as stated by
decree holder, on the failure of petitioner to produce
the valuation certificate as directed. These petitions
are filed under Article 227 of Constitution of India
challenging the order contending that petitioner did
not get sufficient opportunity to produce the valuation
certificate, which he had applied for.
2. On hearing learned counsel appearing for
petitioner, it is clear that executing court has not
complied with the provisions of Sub rule 2 of Rule 66
WP(C)2131 & 2132/2007) 2
of Order XXI of Code of Civil Procedure.
3. After the amendment of Code of Civil Procedure
in 1976, executing court has no duty to enter its own
value of the attached property, which is to be sold for
realisation of the decree debt. Second proviso to Sub
rule 2 of Rule 66 mandates that, though it is not the
duty of the executing court to enter its own value of
the property, it has to direct to incorporate the value
shown by the judgment debtor also in the sale papers.
Learned Sub Judge has fixed an upset price and did not
direct to incorporate the value shown by the judgment
debtor in the sale papers. The order directing sale of
the property after fixing the upset price in both
E.P.40 of 2005 and 41 of 2005 the execution petitions,
are set aside. Executing court is directed to
incorporate the value shown by the petitioner/judgment
debtor in the sale paper as provided under second
proviso to Sub rule 2 of Rule 66 of the Code and
thereafter proceed with sale of the property.
Writ petitions are disposed accordingly.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-