M.N. Mohanan vs State Bank of Travancore

M. Sasidharan Nambiar, J.—Petitioner is the judgment debtor. Respondent is the decree holder. Petitioner is challenging the direction of executing court to proclaim and sell the mortgaged property. Contention of the petitioner is that executing court did not consider Ext.P2 objection and in any event he should have granted permission to pay the entire decree debt in instalments.

Learned Counsel appearing for petitioner and respondent were heard.

Argument of learned Counsel appearing for petitioner was that entire mortgaged property need not be sold for realisation of the decree debt and as provided under Rule 64 of Order XXI, only that portion of the property which is sufficient to realise the decree debt need be sold and therefore the order is to be quashed. Learned Counsel also submitted that petitioner is prepared to pay the decree debt in instalments and he may be permitted to pay the same.

Learned Counsel appearing for respondent argued that Rule 64 of Order XXI applies only to attached properties and not to mortgaged properties and therefore on that ground the order cannot be challenged. The learned Counsel also argued that as per order dated 14.7.2006, petitioner has already been granted six months time and he had sufficient time to pay the decree debt and in such circumstances, petitioner is not entitled to seek permission for payment of decree debt in instalments and even if it is granted, it may be restricted to six instalments with default clause.

Rule 64 of CPC casts an obligation on the executing court to sell only that portion of attached property for realisation of the decree debt and not the entire property. But it applies only to attached properties and not properties which has been mortgaged for the decree debt. A Division Bench of this Court in Dhanalakshmi Bank Ltd. v. Divakaran 2000 (2) KLT 231 considered this aspect and held that the only stage available to a mortgagor to invite the court to take a decision on the question whether the entire mortgaged properties is to be sold for realisation of the amount due or not, is before the decree and if the mortgagor had not taken advantage of that opportunity, he cannot be heard to say in the execution stage that the entire property cannot be sold and only a portion of the mortgaged property need be sold. Therefore the said contention raised by petitioner is unsustainable. In such circumstances, the order cannot be challenged for the reason that executing court did not pass an order that for realisation of the decree debt sale of the entire mortgaged property is not necessary.

As per order dated 14.7.2006, petitioner was directed to deposit Rs. 50,000/-. It is submitted by learned Counsel appearing for petitioner that the amount was deposited. The balance decree debt due is more than Rs. 5 lakhs. Considering the willingness of petitioner to pay the decree debt, petitioner granted permission to pay the entire decree debt in ten equal monthly instalments, providing that if petitioner commits default in payment of two instalments, decree holder is entitled to seek sale of the mortgaged property. The writ petition is disposed of as follows:

Executing court is directed to grant permission to judgment debtor to pay the entire balance decree debt in ten equal monthly instalments, the first instalment falling due on 12.2.2007. If petitioner commits default in payment of two instalments, executing court is to proceed with sale of the mortgaged property.