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2008 Supreme(Online)(KER) 34327
HIGH COURT OF KERALA
M.N.KRISHNAN, J
INDIAN OVERSEAS BANK – Appellant
Versus
K.N.SOMASUNDARAM – Respondent
WP(C)/6121/2008
SRI.GEORGE VARGHESE
An executing court cannot alter the sale order of mortgaged property beyond the decree issued by the court that ordered the sale.
Headnote:
Mortgage - Sale of Property - CPR Order 21 Rule 72 - Summary of provisions relating to property sale; court finds executing court exceeded its authority in splitting up mortgaged property sales contrary to existing decree, requiring rectification.
Fact of the Case:
A writ petition was filed against the order of a subordinate judge directing the sale of part of a mortgaged property to satisfy a decree for an amount owed, amidst conflicting valuations of the property.
Finding of the Court:
The court found that the executing court had no power to alter the decree regarding the sale of the whole property and thus set aside the prior order, directing a fresh enquiry into the property's value.
Issues: Whether the executing court has the authority to modify the terms of a mortgage decree by allowing the sale of a part of the mortgaged property instead of the whole.
Ratio Decidendi: The court reaffirmed that an executing court must adhere to the terms of the original decree regarding the sale of mortgaged properties.
Final Decision: The subordinate judge's order is set aside; fresh enquiry for property valuation is to be conducted.
J U D G M E N T
This writ petition is preferred against the order of the Prl. Subordinate Judge, Ernakulam thereby there is a direction to sell one cent of property. Admittedly the plaintiff has obtained a decree for realisation of an amount of Rs.2,63,240/- by sale of the property mortgaged. It is contended that according to the judgment debtor the value of the property is 5 lakhs per cent whereas according to the decree holder it is Rs.75,000/- per cent. The Court below directed one cent of property to be sold and thereafter if the decree is not satisfied to proceed with the other property. I am afraid that such a decision cannot be arrived at by the Court below for the reason being a mortgage decree the executing Court has no power to split up the property. It is held by this Court in Dhanalakshmi Bank Ltd. Divakaran (2002 (2) KLT 231) that “What is to be noted here is that it is given to the Court passing the preliminary decree for sale, to order either the sale of the whole of the mortgaged property or the sale of the sufficient part of the mortgaged property. Once this power of directing sale either of the whole or of the portion is exercised by the Court which passes the decree, it is clear that the executing Court has no power to go behind that direction in the decree and to alter either the mode of sale ordered or to consider whether anything less than what is directed by the decree to be sold, need alone be sold.”
2. Therefore the order under challenge requires interference and therefore it is set aside. The Court is directed to conduct a fresh enquiry fixing the value of the property and then direct further sale proceedings to be held under Order 21 Rule 72 or under Order 21 Rule 72(A) as situation demands.
3. It is submitted that the execution petition is dismissed for non taking of steps. Since the order directing the sale itself is illegal, the execution petition is to be restored to file and after giving notice to both sides matter be disposed of in accordance with law.
The writ petition is disposed of accordingly.
M.N. KRISHNAN, JUDGE.
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