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P.P.AYISHAKUTTY, W/O. LATE AHAMEDKOYA versus THE STATE BANK OF INDIA

High Court of Kerala

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P.P.AYISHAKUTTY, W/O. LATE AHAMEDKOYA v. THE STATE BANK OF INDIA - WP(C) No. 17284 of 2007(G) [2007] RD-KL 10486 (18 June 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 17284 of 2007(G)

1. P.P.AYISHAKUTTY, W/O. LATE AHAMEDKOYA
... Petitioner

Vs

1. THE STATE BANK OF INDIA,
... Respondent

2. P.P.SHABEER, S/O. LATE AHMEDKOYA HAJI,

For Petitioner :SRI.K.M.FIROZ

For Respondent :SRI.R.S.KALKURA

The Hon'ble MR. Justice M.N.KRISHNAN

Dated :18/06/2007

O R D E R

M.N.KRISHNAN, J.

WP(C)No. 17284 OF 2007 G

Dated this the 18th June, 2007.



JUDGMENT

This writ petition is filed seeking to quash Exts.P5 and P6 orders. The plaintiff obtained a decree in O.S.165/01. When the decree was put into execution he found that though there was a prayer for realisation of the amount by sale of the mortgaged property it was not incorporated in the decree. Therefore, moved an application under Section 152 of the Code of Civil Procedure to correct it. Learned counsel for the decree holder placed before me for perusal the prayer in the plaint. The prayer in the plaint is very clear that it must be a decree for realisation of the amount personally as well as by sale of the property mortgaged. So, it was only an omission done by the court at the time of drafting the decree and therefore the trial court has not committed any error in allowing the amendment for a charge decree. The next point is regarding execution. It is submitted by the learned counsel that 60 cents of property is involved and the land value in Koduvally town is high and that a sale of portion of the property will be sufficient for discharging the decree debt. On the other hand learned counsel for the decree holder would submit that being a WPC 17284/07 2 mortgage decree it cannot be sold in fraction. This aspect of the matter may be considered by the executing court after permitting both sides to produce authorities in that behalf and thereafter proceed to dispose of the property in accordance with law. Till a decision is taken on the said point the sale shall be deferred. Writ petition is disposed of accordingly. M.N.KRISHNAN Judge jj


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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