IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35182 of 2008(L)
1. MUHAMMED, S/O.UMARAKOTTIL ABDUL RAHIMAN,
... Petitioner
Vs
1. SILAIRE INVESTMENTS AND HIRE PURCHASES
... Respondent
2. SILAIRE INVESTMENTS AND HIRE PURCHASES
For Petitioner :SRI.D.ANIL KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :28/11/2008
O R D E R
K.P. Balachandran, J.
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W.P.(C)No.35182 of 2008 L
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JUDGMENT
Petitioner is the judgment debtor in O.S.No.
950/00 on the file of the Sub Court, Thrissur.
Respondents/decree holders filed E.P.No.23/08 in
the court below to have the money decree obtained
by them executed and amounts recovered by sale of
the property belonging to the judgment debtor,
which was charged under the decree.
2. The grievance of the petitioner is that the
execution court has not at all adopted the
procedures to be followed in such cases and has
casually settled the proclamation as submitted by
the decree holders and ordered the property to be
proclaimed for sale vide order dated 3.10.2008 and
posted the case for sale, whereas, on 3.10.2008, an
objection has been filed by the petitioner to Rule
66 notice pointing out that the amount of
Rs.50,000/- shown as the value of the property is
very meagre and that the property is really worth
WPC 35182/08 2
Rupees Eight lakhs.
3. Petitioner has produced the endorsements
made by the court below on E.P.No.23/08, which
shows that the execution court has ordered Rule 22
notice to the judgment debtor and posted the case
to 24.3.2008 and thereafter to 5.6.2008. But, on
that day, there was no sitting and the case was
adjourned to 10.7.2008. On 10.7.2008, the judgment
debtor prayed for time to file counter and the case
was adjourned to 15.8.2008, on which day also,
there was no sitting and the case was adjourned to
15.9.2008. The endorsement in the order sheet on
15.9.2008 is “settlement of proclamation, steps on
3.10.2008”. The endorsement on 3.10.2008 is “for
proclamation on 22.10.2008” and the endorsement on
22.10.2008 is “for sale, steps – 2.12.2008”. From
the order passed on 15.9.2008, it is not clear as
to whether proclamation was settled on that day and
for what purpose was the EP adjourned to 3.10.2008.
Filing of objection by the judgment debtor on
WPC 35182/08 3
3.10.2008 is not made mention of. Unless settlement
of proclamation is had, the property cannot be
proclaimed for sale. It does not appear from the
order of the execution court as to whether the
court has accepted the upset price shown in the
draft proclamation or has applied its mind to the
value of the property in the proclamation schedule.
4. Further, when Rule 22 notice is issued to
the judgment debtor, what one expects is for the
judgment debtor to file objection to the
executability of the decree and not objection to
the draft proclamation. Immediately after ordering
Rule 22 notice and the judgment debtor entering
appearance pursuant thereto, without any further
notice under Rule 66, the court has passed on to
the stage of settlement of proclamation, without an
order being passed allowing the decree holders to
execute the decree, when only the stage of Rule 22
notice will be over. On the whole, the entire
steps adopted by the execution court to bring the
WPC 35182/08 4
property to sale on the application of the decree
holders is not at all in conformity with the
provisions under Order XXI CPC.
5. In the result, even without notice to the
respondents/decree holders, I set aside the entire
proceedings adopted by the execution court on
Exhibit P2 execution application ever after
15.8.2008 and direct the court below to proceed
afresh from that stage. Petitioner is directed to
produce a copy of this judgment in the court below
forthwith with notice to the respondents/decree
holders, as this writ petition is being disposed of
without notice to them. The sale posted to
2.12.2008 is stopped.
The writ petition is disposed of with the above
directions. Issue copy of this judgment to the
counsel for the petitioner urgently.
28th November, 2008 (K.P.Balachandran, Judge)
tkv