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DAISY JOSEPH @ DAISY JOJO versus THE MANAGER

High Court of Kerala

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DAISY JOSEPH @ DAISY JOJO v. THE MANAGER - WP(C) No. 14537 of 2007(E) [2007] RD-KL 9003 (30 May 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 14537 of 2007(E)

1. DAISY JOSEPH @ DAISY JOJO ,
... Petitioner

2. RESHMA JOSEPH (MINOR),

Vs

1. THE MANAGER,
... Respondent

For Petitioner :SRI.GIGIMON ISSAC

For Respondent : No Appearance

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

Dated :30/05/2007

O R D E R

M.N.KRISHNAN, J.

WP(C)No.14537 OF 2007 E

Dated this the 30th May, 2007.



JUDGMENT

This writ petition is filed seeking to stay the execution proceedings before the Principal Sub Court, Ernakulam and to pass orders in Ext.P3 petition. The decree holder bank has obtained a mortgage decree against the husband of the first petitioner. It is contended that the husband of the first writ petitioner is unheard of for more more than seven years and the first petitioner along with others had instituted a suit for a declaration that if it happens to be decreed they will be entitled to relief in the case. The husband of the first writ petitioner was an employee of the decree holder bank and he had availed loan and on default of payment of the loan a suit was filed for realisation of the amount. It is contended that the whereabouts of the husband is not known for more than seven years and F.I.R has been lodged in the year 1998, Now she has filed Ext.P3 application to consider her objections.

2. Since it is a mortgage decree, even if she is entitled to right over the property whether she can file such an application is a matter to be considered by the court after hearing both sides. It is also contended that the estimated price for the property is grossly inadequate WPC 14537/2007 2 and the writ petitioners will be in the street if this property is sold. It is incumbent upon the court as well to fix a proper upset price and only to sell the property that may be necessary for the realisation of the decree debt. So these are all matters which has to be considered in a case of this nature. Therefore, I am inclined to dispose of the writ petition as follows:-

i) The executing court is directed to consider Ext.P3 application after giving due notice to the decree holder and pass appropriate orders on the same. ii) The executing court also may find out whether the proper upset price is fixed for the property and the entire property is necessary for discharge of the decree debt. The sale which is posted for today shall stands deferred. The writ petitioners are directed to pay an amount of Rs.25,000/- (Rupees twenty five thousand only) on or before 11.6.2007. 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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