Manuelsons Financial … vs V.C. Balachandran on 13 December, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP No. 608 of 2006()


1. MANUELSONS FINANCIAL ENTERPRISES (P) LTD
                      ...  Petitioner

                        Vs



1. V.C. BALACHANDRAN, S/O.CHANDRASEKHARAN,
                       ...       Respondent

2. SATHI NARAYANAN,

3. LAHAR, S/O.MUTTICHUR NARAYANAN,

                For Petitioner  :SRI.P.SANTHOSH  (PODUVAL)

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :13/12/2007

 O R D E R
                          M.N.KRISHNAN, J.
                          --------------------------
                       C.R.P. NO. 608 OF 2006
                            ---------------------
             Dated this the 13thday of December, 2007

                                 ORDER

This civil revision petition is preferred against the order of the

Subordinate Judge, Irinjalakuda whereby the court directed to carve

out 30 cents of the mortgaged property and conduct the sale. It is

against that decision, the decree holder has come up in revision.

The court below has omitted to take note of the decision of the

Division Bench of this court reported in Dhanalakshmi Bank Ltd. V.

Divakaran [2000 (2) KLT 231]. This court held that what is to be

noted here is that power is given to the court passing the preliminary

decree for sale, to order either sale of whole of the mortgaged

property or the sale of sufficient part of the mortgaged property.

Once this power directing sale either on the whole or of the portion is

exercised by the court which passes the decree, it is clear that the

executing court has no power to go behind that direction in the

decree or to alter either the mode of sale ordered or to consider

whether anything less than what is directed by the decree to be sold

need alone be sold. A perusal of the order under challenge would

CRP NO.608/06 2

reveal that the decree directed for the sale of 74 = cents of property.

So, on the basis of the decision referred to above, the executing

court has no power to reduce the same.

Therefore, I set aside the order passed by the court below and

remit the case back to the executing court for fresh consideration and

for passing appropriate orders in the light of the decision referred to

above, after hearing the judgment debtors as well.

The civil revision petition is disposed of as above.

M.N.KRISHNAN, JUDGE
vps

CRP NO.608/06 3