IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 15^TH DAY OF SEPTEMBER 2022 / 24TH BHADRA, 1944 OP(C) NO. 1522 OF 2022 AGAINST THE ORDER/JUDGMENT IN EP 16/2019 OF SUB COURT, PALA PETITIONER/S:

1 JOLLYCHAN P. JOSEPH, AGED 52, S/O. JOSEPH, PULIMOOTTIL HOUSE, THALAPPALAM KARA, ERATTUPETTA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN - 686122

2 USHA JOLLYCHAN, AGED 50 YEARS W/O.JOLLYCHAN P. JOSEPH, AGED 52, PULIMOOTTIL HOUSE, THALAPPALAM KARA, ERATTUPETTA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN - 686122 BY ADVS.

BABY THOMAS GEORGE T.J MARIAMMA JOSEPH BIJU GEORGE RESPONDENT/S:

P. T THOMAS, AGED 64, S/O.THOMAS, PLATHOTTATHIL HOUSE, KIDANGOOR VILLAGE, PULLAPALLY KARA, MEENACHIL TALUK, KOTTAYAM, PIN - 686572 BY ADV P.C. Haridas Pulickal Chandrasekhara pillai THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON

15.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Aggrieved by the order dated 15.07.2022 (Ext.P8)

passed in E.P.No.16/2019 in O.S.No.44/2014 of the Court of the Subordinate Judge, Pala, the judgment debtors have filed the original petition. The decree holder is the respondent.

2. The antecedent facts relevant for the determination of the original petition are: the petitioners are the judgment debtors in Ext.P1 execution petition filed by the respondent, to realise the money from the petitioners due under the decree. Eventhough the respondent has shown three items of property in Ext.P1, he has proceeded only against item No.3 scheduled property. The petitioners have filed Ext.P2 written objection to the draft sale proclamation and Exts.P3 and P4 written objections to Ext.P1 execution petition. The court below, without considering the objections, by Ext.P5 order, fixed the upset price of item No.3 schedule property at Rs.20,00,000/-. Challenging Ext.P5 order, the petitioners filed O.P.(C). No.1165/2022 before this Court. This Court, by Ext.P6 order, directed the court below to defer the sale proceedings on condition that the petitioners deposit an amount of Rs.5,00,000/- before the court below. Then, the respondent filed I.A.No.1/2022 (Ext.P7) in Ext.P1, to substitute item No.2 schedule property in place of item No.3 schedule property. Without granting the petitioners an opportunity to file their objections to Ext.P7 application, the court below, by the impugned Ext.P8 order, directed the sale of the attachment schedule property. Likewise, the court below, on the same day of passing Ext.P8 order i.e. 15.07.2022, by Ext.P9 order, allowed the substitution of item No.3 property with item No.2 property. The court below has not complied with any of the procedural formalities as prescribed under the Code of Civil Procedure (in short, 'Code'), including, effecting of proclamation or fixing of upset price. Instead, on the basis of proclamation and upset price fixed for item No.3 property, the court below has directed item No.2 property to be sold. The entire proceedings leading to Exts.P8 and P9 are vitiated by material irregularity and are illegal. Hence, the original petition.

3. Heard; Sri.Baby Thomas, the learned counsel appearing for the petitioners and Sri. P. C. Haridas, the learned counsel appearing for the respondent.

4. The point is whether there is any illegality in Exts.P8 and P9 orders.

5. Undisputedly, the sale proceedings were initiated only against item No.3 scheduled property in Ext.P1 execution petition. The proclamation and upset price in respect of item No.3 property was alone effected and fixed. No steps were taken to proclaim and sell item No.2 property. However, when the execution petition reached the stage of sale, the respondent filed Ext.P7 application, to substitute item No.2 scheduled property in place of item No.3 scheduled property. The court below, without affording the petitioners an opportunity to file their counter affidavit/written objection to Ext.P7 application, allowed the application and passed Ext.P9 order, and has proceeded agai