IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25343 of 2009(O)
1. JOHN AMBATTU, S/O. XAVIER, AGED 59,
... Petitioner
Vs
1. MATHEW, S/O. SEBASTIAN,
... Respondent
For Petitioner :SRI.K.R.VINOD
For Respondent :SRI.GRASHIOUS KURIAKOSE
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :07/10/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No.25343 of 2009
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Dated: 7th October, 2009
JUDGMENT
The Writ Petition is filed seeking the following relief:
“To call for the records leading to Exhibit P3 order and Exhibit
P4 sale proclamation and set aside the Exhibit P3 and Exhibit P4.”
2. Petitioner is the judgment debtor in E.P.No.306 of 2004 on
the file of the Sub Court, Muvattupuzha. P3 order passed by the
learned Sub Judge is challenged in the Writ Petition contending that
there was no application of mind in settling the proclamation and
ordering sale of the attached property.
3. Notice being given, the respondent decree holder has
entered appearance. I heard the counsel on both sides. Previously, a
proclamation was settled for sale of the entire attached property is
not disputed. However, on the basis of the objection raised by the
judgment debtor, fresh proclamation was settled in respect of five
cents of property as that alone was found necessary to satisfy the
decree debt by the execution court. That order, as indicated above,
was passed by the court after affording sufficient opportunity to the
judgment debtor to avoid the sale acting upon his representation that
W.P.C.No.25343/09 – 2 –
he would tender the entire decree debt. But the representation
remain unhonoured. While settling the proclamation, the upset price
was omitted to be fixed by the court and that necessitated passing of
P3 order. Under P3 order, the court fixed the upset price directing for
fresh proclamation and sale. It was not a case of incorporating the
upset price in the previous proclamation, but settling of fresh
proclamation incorporating the upset price and its publication before
proceeding with the sale. Apparently, there is no illegality or
impropriety in P3 order passed by the execution court and the
challenge raised against P3 order is devoid of any merit. The court
below had been directed to adjourn the sale subject to the condition
of the judgment debtor depositing the sum ordered by this court
while admitting the Writ Petition. The amount ordered has not been
deposited. That also is a circumstance to be taken note of. The Writ
Petition lacks merit and it is dismissed.
srd S.S. SATHEESACHANDRAN, JUDGE