The petitioner is the decree holder in E.P.No.87/2006 in O.S.No.68/2003 of the Sub Court, Pathanamthitta and the respondent herein is the judgment debtor in the said execution petition. The above decree is for realisation of money from the respondent. The petitioner herein filed the execution petition for executing the decree. The respondent was set ex parte in the above proceedings. The petitioner filed a petition to sell the property of the respondent in public auction as per Ext.P2 schedule of property. The petitioner subsequently produced Ext.P3 encumbrance certificate which shows certain other encumbrances also over the property. After considering Ext.P3 encumbrance certificate, Execution Court passed Ext.P4 order directing the decree holder to take steps against some other property free from encumbrance. This order is under challenge in this writ petition.
2. The learned counsel for the petitioner submits that the Execution Court has failed to exercise jurisdiction provided under law, in case the property is burdened with other encumbrances also. The other claims, if any, also can be decided by the Execution Court itself. But the Execution Court has wrongly directed the petitioner to proceed with other properties of the respondent. But, to the knowledge of the petitioner, there remains no other property of the respondent and the petitioner is unable to proceed with the execution of the decree. Hence Ext.P4 is liable to be set aside.
3. Per contra, the learned counsel for the respondent submits that the property sought to be auctioned had already been mortgaged to LIC Housing Finance, Thiruvananthapuram, and thereby the LIC is a secured creditor and the secured creditor will get priority over all other unsecured creditors. In that context, the impugned order under challenge is justifiable.
4. The short question that arises for consideration is, whether there is any illegality or impropriety in the impugned order directing the petitioner to proceed with other properties, if any, of the respondent? Going by Ext.P3 encumbrance certificate, it is seen that some other liabilities are in existence over the property sought to be auctioned. In addition to that, the learned counsel for the respondent submits that LIC is a secured creditor whose liability is not shown in the encumbrance certificate. Whatever be the number of encumbrances over the property sought to be auctioned, if the judgment debtor has no other property, the Execution Court has to proceed with the said property in accordance with law. I am of the opinion that Execution Court cannot be justified for directing the petitioner to proceed with other properties. As rightly submitted by the learned counsel for the petitioner, it appears that the Execution Court failed to execute the power and jurisdiction conferred to it under Section 73 of the CPC. It is for the Execution Court to fix priority of the claims. In the above view, the impugned order is set aside and the Execution Court is directed to proceed with the present execution petition in accordance with law.
This Writ Petition is disposed of accordingly.
Sd/-
(K.HARILAL, JUDGE) okb.