ORDER
A. Lekshmikutty, J.
1. Challenging the order in E. P. No. 31 of 2001 in O. S. No. 170 of 1998 on the file of the Sub Court. Thrissur, this revision petition is filed by the petitioner.
2. The petitioner is the judgment debtor in E. P. No. 31 of 2001 in O. S. No. 170 of 1998 and the respondent is the decree holder therein. A decree charged on the decree schedule property was passed for realisation of money. The extent of the property is 10 cents with a residential building. Petitioner filed objection to the Execution Petition and the proclamation schedule. The contention in the objection was that the property With the building would fetch more than Rs.7 lakhs and the market value of the land is Rs.50,000/- per cent. The property excluding the building alone need be sold to satisfy the decree. The Execution Petition was filed for an amount of Rs.1,00,903/-. Further contention was that. In view of the
bar contained in Section 10 of the Kerala Scheduled Tribe (Restoration on Transfer of Lands and Restoration of Alienated Lands) Act 1975, the property is not liable to be sold in execution. The petitioner is a member of Scheduled Tribe. The Execution Court without considering the valid objections raised by the revision petitioner passed the impugned order.
3. The question to be considered is whether the impugned order is liable to be set aside. The decree holder filed the Execution Petition for realisation of an amount of Rs. 1,00.903/-. The fact that the decree schedule property is having an extent of 10 cents with a residential building is not disputed. The specific contention of the revision petitioner is that for realisation of the decree amount, the entire property need not be sold. As per the petitioner, the property would fetch more than Rs. 7 lakhs. The market value of the property is Rs. 50,000/- per cent. So, a portion of the property will be sufficient to satisfy the decree. The Impugned order would not show that the objection raised by the petitioner was considered by the Execution Court. Nothing has been stated in the impugned order regarding the objection raised by the petitioner.
4. There is a duty cast upon the Execution Court under Order XXI Rule 64 of the C.P.C. to sell such property or portion thereof as may seem necessary to satisfy the decree. It is mandatory that the Execution Court should consider whether the entire property is to be sold for satisfying the decree. In the present case, the Court below has not considered the objections raised by the judgment debtor before passing the impugned order. The Execution Court ought to have considered whether a portion of the decree schedule property would be sufficient to satisfy the decree. The grievance of the petitioner is that no opportunity was given to her to substantiate her objection regarding the market value of the property. It seems that the Execution Court has not considered whether the property excluding the residential building would be sufficient to satisfy the decree. Under Order XXI. Rule 64 of the C.P.C., the Execution Court is bound to consider whether the entire decree schedule property is to be sold or a portion thereof need be sold to satisfy the decree, in the instant case, the Execution Court failed to consider the same. In such
circumstances I am constrained to hold that the order passed by the Execution Court is illegal. Irregular and improper. Since. Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act 1975 is repealed the question whether the property of the petitioner could be sold in execution of the decree does not arise-The impugned order is set aside and the case is remanded to the Execution Court for fresh disposal. The Execution Court is directed to consider the objection filed by the revision petitioner on the basis of the above observation and in accordance with law. The Execution Court shall afford an opportunity to the revision petitioner to substantiate her objection.
The Civil Revision Petition is allowed. There is no order as to costs.