IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 10497 of 2008(Y)
1. K.P. SREEKUMAR
... Petitioner
Vs
1. ANTONY JOSEPH KAVALAN
... Respondent
For Petitioner :SRI.B.KRISHNA MANI
For Respondent :SRI.R.S.KALKURA
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :16/06/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No.10497 of 2008
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Dated this the 16th June, 2008.
J U D G M E N T
3rd judgment debtor in O.S.No.212/1987 on the file of
the Sub Court, Kollam, is the petitioner. Respondent is the decree
holder. For realisation of the amount due under the money decree,
E.P.No.193/1989 was filed by the respondent before the Sub Court,
Kollam. Petitioner is challenging Ext.P5 order whereunder learned
Sub Judge suo motu reviewed the earlier order and directed
proclamation and sale of the property sought to be sold.
2. The learned counsel appearing for the petitioner and
respondent were heard. Ext.P5 order does not show any valid reason
to review the earlier order suo motu. Ext.P1 decree provides for sale
of the decree scheduled properties for realisation of decree debt of
Rs.2,87,137.61 with interest and cost. Ext.P5 order shows that a
Commissioner was originally appointed to prepare a plan with the
assistance of Taluk Surveyor and the Commissioner l surrendered the
commission warrant stating that Taluk Surveyor is not co-operating.
W.P.(C) No.10497/2008
2
Learned Sub Judge, for the reason that it is one of the oldest Execution
Petition, and the amount to be realised is more than Rs.5 lakhs and
the properties sought to be sold is 52 cents, recalled the commission
warrant for the reason that “I found no need to survey and sub-divide
the property as requested by the judgment debtor. Hence the earlier
order passed in E.A.No.613/2007 stands reviewed suo motu”. Ext.P5
order does not show that Sub Judge directed proclamation and sale
before the Commissioner completing the work for the reason that
decree is a mortgage decree and for that reason integrity of the
mortgage cannot be split up by directing sale of the property into
different plots. Order does not reveal for what reason the executing
court found that report of the Commissioner or the survey of the
property is not necessary so as to recall the earlier order and that too
suo motu. In such circumstances, Ext.P5 order is quashed. Sub Judge
is directed to pass appropriate order in E.P.No.193/1989 in accordance
with law.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.