IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 13198 of 2006(U)
1. UMMAYYAKUTTY UMMA, D/O.SAIDALIKUTTY,
... Petitioner
Vs
1. SUHARA, D/O. KUNHIMOIDEENKUTTY,
... Respondent
2. RAZHEED, S/O. KUNHIMOIDEENKUTTY,
3. RAZHEENA, D/O. KUNHIMOIDEENKUTTY,
4. ALI ASKAR, S/O. KUNHIMOIDEENKUTTY,
5. SAINABA, W/O. KUNHIMOIDEENKUTTY,
6. AMBALAPARAMBIL YOUSAF, S/O. MOHAMMED,
For Petitioner :SRI.T.KRISHNAN UNNI
For Respondent :SRI.K.RAMACHANDRAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :18/01/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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W.P.(C) .NO.13198 OF 2006
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Dated 18th January 2007
J U D G M E N T
Petitioner is the judgment debtor.
Respondents 1 to 5 are decree holders and 6th
respondent the auction purchaser in O.S.342/99 on the
file of Munsiff court, Tirur. Towards realisation of
decree debt respondents 1 to 5 filed E.P.71/2003, for
attachment of the property of the petitioner. Property
was sold in court auction sale and purchased by 6th
respondent. When the execution petition was posted
for confirmation of sale, judgment debtor filed this
petition under Article 227 of Constitution of India
contending that total extent of property sold in E.P
is 63 cents and for realisation of decree debt it is
not necessary to sell the entire property and
executing court under Rule 64 of Order XXI of Code of
Civil Procedure has to sell only that portion of
attached property, which is necessary to realise
decree debt and as it was not considered executing
court has no jurisdiction to direct sale of the
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property and executing court is bound to consider the
question before confirmation of sale. According to
petitioner he apprehends that if that objection is
taken before executing court that may not be accepted
and therefore this petition is filed to set aside the
sale and to permit petitioner to pay the decree debt
in instalments.
2. Learned counsel appearing for petitioner and
respondents were heard.
3. Learned counsel appearing for petitioner
relying on the Division Bench ruling of this court in
Gnan Das v. Paulin Moraes (1998 (2) KLT 88) argued
that before directing sale executing court is bound to
consider the mandate provided under Rule 64 and if
that has not been complied, it is a ground which could
be taken in an application filed under Rule 90 to set
aside the sale.
4. Question is whether petitioner is entitled
to approach this court to set aside the sale, when
petitioner has a remedy provided under Rule 90 of
Order XXI of the Code. Even as per the decision relied
on by the learned counsel appearing for petitioner,
the contention raised by petitioner could be urged and
if urged is to be considered by executing court in an
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application filed under Rule 90 of order XXI. For the
reason that petitioner apprehends that executing court
may not accept the contention, is not a ground to
approach this court before approaching the executing
court. This petition is disposed with liberty to
petitioner to file an application under Rule 90 of
Order XXI of Code to set aside the sale raised all the
contentions raised herein. Petitioner can also raise
the contention before the executing court before
confirming the sale. It is submitted by learned
counsel appearing for petitioner that Rs.25,000/- as
directed by this court on 24/5/2006 was deposited
before executing court.
Writ petition is disposed accordingly.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.