1. The main prayer in this Original Petition (Civil) filed under the enabling provisions contained in Article 227 of the Constitution of Indians as follows:

“Set aside Exts.P5 and P6 orders and Ext.P7 proclamation of sale of the property owned by the petitioner in RS No.33/1A3 in Elathur Amsom Desom of Kozhikode Taluk.”

2. Heard Sri. R.K. Muralidharan, learned counsel appearing for the petitioner/judgment debtor and Sri. R. Sudhish, learned counsel appearing for the respondent/decree holder.

3. The petitioner herein is the defendant in a suit for realisation of money, filed by the respondent. It is stated that the suit was decreed ex-parte and the petitioner came to know about the decree only after he received notice in the execution proceedings. Immediately thereafter he had filed Exhibit-P2 objection dated 8.3.2016 contending that the cent age value of the property scheduled in the Execution Petition is nearly Rs.2,50,000/- and that sale of 2 cents, out of the total extent of 17 cents, of that property would be more sufficient to meet the entire decree debt of Rs.3,25,000/-. The court below had initially fixed the upset price of the property as Rs.12,00,000/- and later the upset prize was reduced to Rs.11,50,000/- by the execution court on an application filed by the decree holder. Going by the admitted facts, it is seen that the total extent of the property covered by the schedule in the Execution Petition is 17 cents and even the upset prize fixed by the court even after reduction comes to Rs.11,50,000/-. Further it is also noted that the decree debt comes to about Rs.3,25,000/-. Therefore, it appears that the contention of the petitioner/judgment debtor that sale of the part of the property alone would have suffice to meet the entire decree debt appears to be prima facie strong and tenable.

4. The Apex Court and various High Courts have held in a catena of decisions that it is indeed the duty of the execution court to consider whether sale of only a part of the property would be sufficient to meet the decree debt, in terms of the provisions contained in Order XXI Rule 64 of the C.P.C. It has also been held by the Apex Court in the decision as in Balakrishnan v. Malaiyandi Konar reported in (2006) 3 SCC 49 as follows:

“In all execution proceedings, the court has to first decide whether it is necessary to bring the entire property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree to be satisfied is small the court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provision of law only such portion of the property should be sold. This is not just a discretion but an obligation imposed on the court. The sale held without examining this aspect and not in conformity with this mandatory requirement would be illegal and without jurisdiction.”

After the amendment of the Constitution introduced as per the 44th Amendment Act, 1978, made effective from 20.6.1979, clause (f) of Article 19(1) was deleted whereby the right to property was no longer a fundamental right under part III of the Constitution of India. However, the right to property is duly protected by the provisions contained in Article 300-A of the Constitution of India, introduced by the above said 44th Amendment Act, 1978 with effect from 20.6.1979, which reads as follows :

"300A. Persons not to be deprived of property save by authority of law -No person shall be deprived of his property save by authority of law.”

It has been held by the Apex Court in the decision as in Bishamber v. State of Uttar Pradesh reported in AIR 1982 SC 33 that though the right not to be deprived of property save by authority of law is no longer a fundamental right, it is still a constitutional right.

5. It i