The third judgment debtor in O.S.No.234 of 2004, Sub Court, Palakkad, challenges the order dated 17.12.2010 passed by the executing court directing sale of an extent of 51 cents of land for realisation of a sum of ` 9,06,213/- claimed in the Execution Petition.

2. The respondent obtained a decree for a sum of ` 7,34,126/- together with interest. It is stated that the decree is a mortgage decree and that the decree itself provides for sale of only sufficient portion of the mortgaged property for realisation of the decree amount.

3. In the Execution Petition, notice was issued to the judgment debtors. The petitioner filed a counter statement dated 9.7.2009, in which, he contended that sale of two items of immovable properties is not required for realisation of the decree debt. Item 1 is having an extent of 1.82 acres. Item 2 consists of 51 cents. In the objection, it is stated that item 2 is a paramba and it would fetch a market value of ` 25 lakhs. It was contended that sale of a portion of item 2 would be sufficient for realisation of the decree debt.

4. On the basis of the counter statement dated 9.7.2009, the executing court excluded item 1 from the purview of sale. Item 2 was directed to be sold for realisation of the decree debt.

5. Thereafter, draft sale proclamation was produced and the case was posted for settlement of proclamation. The petitioner filed objections dated 28.10.2010 to the notice under Rule 66 of Order XXI of the Code of Civil Procedure. In the objections, he raised a contention that item 2 property which was sought to be sold would fetch a market value of ` 25 lakhs. It was also contended that the property is situated on the side of the panchayat road and it will fetch a value of Rupees One lakh per cent. The petitioner contended that it is not necessary to sell the whole of item 2 for realisation of the decree amount.

6. The court below passed an order dated 17.12.2010, which is under challenge in this Original Petition, rejecting the contention raised by the petitioner. The court below found that an order was passed on 18.5.2010 rejecting the contention of the petitioner that sale of a portion of item 2 would be sufficient for realisation of the decree debt. As per that order, the whole of item 2 was directed to be sold. Since the petitioner raised a contention that the estimated value of the property would be ` 25 lakhs, the executing court directed to incorporate in the sale proclamation the value suggested by the petitioner.

7. The learned counsel for the petitioner, Sri.R.Sudhish, submitted that the order dated 17.12.2010 is illegal and unsustainable. The counsel relied on the decisions in P.K.Kuruvilla v. Corporation Bank (2008 (1) KLT 604 = 2008 (1) KHC 258) and Chandradas K.P.v. A.Nizar and others (2009 (3) KHC 841).

8. Sri.O.Ramachandran Nambiar, the learned counsel appearing for the respondent/decree holder contended that the order dated 18.5.2010 would be a bar for considering the request made by the petitioner in the objection to the notice under Rule 66 of Order XXI of the Code of Civil Procedure. The court below rightly held that the petitioner having not challenged the order dated 18.5.2010, the present contention could not be entertained. The counsel also relied on the decision in Harishankar v. Syndicate Bank of India and others (ILR 1996 (1) Kerala 756).

9. In Ambati Narasayya v. M.Subha Rao and another (AIR 1990 SC 119), the Supreme Court held that in an execution sale, the court should ensure that only the property sufficient to satisfy the decree alone should be sold. The Supreme Court held that it is a mandate of the legislature and it is not a mere discretion of the Court. Even if the property sought to be sold is one item, the contention of the judgment debtor that a portion of the same would be sufficient to satisfy the decree should be considered. The decision of the Supreme Court in Ambati Narasayya's case was followed in several other decisions of the Suprem