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2008 Supreme(Online)(KER) 54537
HIGH COURT OF KERALA
M.N.KRISHNAN, J
K.A.GOPINATHAN – Appellant
Versus
PUNJAB NATIONAL BANK , MAVOOR BRANCH – Respondent
WP(C)/968/2008
SRI.P.VIJAYAKUMAR, SRI.P.K.SURESH KUMAR, SMT.PRIYA VIJAYAN
The court clarified the rules regarding property valuation and reserve prices in mortgage sales, emphasizing adherence to the procedures outlined in the Code of Civil Procedure.
Headnote:
Property - Mortgage Sale - Code of Civil Procedure Section 21 Rule 72(A) - The court emphasized the necessity of a fixed reserve price for mortgage sales, ensuring it reflects the debt amount, while allowing consideration of the debtor's valuation.
Fact of the Case:
A writ petition was filed to direct the court to appoint an Advocate Commissioner for property valuation and confirm the sale of a mortgaged property to satisfy a decreetal debt, alongside a request for one-time settlement.
Issues: The main issue was whether a portion of a mortgaged property could be sold without specific direction in the decree and the procedure for fixing property value in a mortgage sale.
Ratio Decidendi: The court cited previous case law to assert that without a clear directive, it cannot authorize the sale of parts of property under a mortgage decree. It also clarified the requirement for a reserve price reflecting the debt in such sales.
Final Decision: The writ petition was disposed of directing the decree holder to submit a new draft proclamation for the sale.
J U D G M E N T
This writ petition is preferred with a prayer to direct the Addl. Sub Judge, Kozhikode to pass orders on E.A.493/07 for sending out an Advocate Commissioner for proper valuation of the property and also to confirm the sale of the petitioner's property to the extent absolutely necessary to satisfy the decreetal debt and for a further direction to the respondent to consider Ext.P6 for one time settlement. So far as the second prayer regarding the portion of the property to be sold it cannot be accepted for the reason that it is a mortgage decree and a Division Bench of this Court in Dhanalakshmi Bank Ltd. v. Divakaran (2000 (2) KLT 231) had held that unless there is a specific direction in the decree itself providing for sale of a portion of the property the Court has no power to split it and sell it. Admittedly there is no such direction in the decree and therefore that cannot be considered.
W.P.C 968 OF 2008
2. So far as the first prayer is concerned a Commissioner is requested to be appointed. It is a well settled proposition now that it is not incumbent upon the Court to fix the value of the property but when a decree holder is permitted to participate in the sale in a mortgage decree under Order 21 Rule 72-A reserve price has to be fixed which shall not be less than the amount due from the judgment debtor to the decree holder. Even then there is no bar in showing the valuation of the property estimated by the judgment debtor in the draft proclamation. Therefore the writ petition is disposed of directing the decree holder, Bank to submit a fresh draft proclamation incorporating the value suggested by the judgment debtor as well and the Court to proceed with the sale strictly in accordance with law under Order 21 Rule 72(A) of the Code of Civil Procedure . If the Bank and the judgment debtor are in a position to negotiate the matter for settlement this judgment will not stand in the way.
The writ petition is disposed of accordingly.
M.N. KRISHNAN, JUDGE.
ul/-
