IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 FAO.No. 193 of 2007() --------------------- AGAINST THE ORDER IN EA.244/05 IN EP.280/04 IN OS.397/2003 of MUNSIFF COURT, VAIKOM .................... APPELLANT/IST RESPONDENT/DECREE HOLDER/PLAINTIFF ------------------------------------------------------------------------------------ M.J.THOMAS, ELUMANATHARA HOUSE, CHEMMANATHUKARA, VAIKOM VILLAGE. BY ADV. SRI.T.A.SHAJI RESPONDENT(S): PETITIONER & 2ND RESPONDENT/J.D/DEFENDANT ------------------------------------------------------------------------------------------------- 1. V.HARIDAS, S/O.VELAYUDHAN, AYYANKORIL HOUSE, N.E.WARD, NADUVILE VILLAGE, VAIKOM P.O. 2. N.K.SOMAN, S/O.KRISHNAN ACHARI, THUNDATHARA HOUSE, NADUVILE VILLAGE, VAIKOM P.O. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 193 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of July, 2009. JUDGMENT Bhavadasan, J, Petitioner before the court below filed O.S. 107 of 2003 against the judgment debtor in O.S. No.397 of 2003 for recovery of money. He obtained a decree for an amount of Rs.7,34,250/- with interest at the rate of 12% per annum on the principal amount of Rs.5,00,000/- from the date of suit till date of decree and 6% interest thereafter. 24 cents of property in Sy.No.66/20 AB in Naduvile Village with a building therein and a shop building were attached in O.S. 107 of 2003. Petitioner came to know that an extent of 2.726 cents in Sy. No.193/1B with a shop building therein had been sold in auction in revenue recovery proceedings initiated at the instance of Dhanalakshmi Bank. It is stated that the decree holder and the judgment debtor in O.S. 397 of 2003 were fully aware of the attachment of the property in O.S. 107 of 2003. The petitioner later came to know that 24 cents of property in Sy. No.66/20 AB and the building therein had been FAO. 193/2007. 2 brought to sale in execution of the decree and it was sold for a meagre amount of Rs.62,343/-. According to the petitioner that sale was a fraud played by the decree holder in that suit along with the judgment debtor. Even though there was an attachment of the property prior to the execution sale, that was not shown in the proclamation for sale. It is also pointed out that the sale of 24 cents of property was held without following the procedure and therefore the sale is vitiated. Pointing out that fraud has been played and there is irregularity and illegality in the sale conducted, the petitioner before the court below laid a petition under Order XXI Rule 90 of the Code of Civil Procedure to have the sale set aside. 2. The petition was resisted only by the decree holder in O.S.397 of 2003. It was pointed out that the application is without any bonafides and the sale is not liable to be set aside. The judgment debtor in O.S. 397 of 2003 is indebted to many persons. According to this respondent, collusion was between the petitioner in E.A. 244 of 2005 and the judgment debtor. The application itself is not maintainable. At the time of sale nobody had come forward to bid and FAO. 193/2007. 3 therefore the decree holder himself bid in the auction. At no point of time, the petitioner had raised any manner of objection to the sale and this is a belated attempt to get the sale set aside without any ground whatsoever. 3. For the purpose of the interlocutory application, the court below had Exts. A1 to A3 marked. On a consideration of the materials before it, the court below found that the sale is vitiated by material irregularity and illegality and therefore set aside the sale conducted by the court. Aggrieved by the said order, the decree holder in O.S. 397 of 2003 has come up in appeal. 4. Most of the facts are not in dispute. It is not in dispute that 24 cents of property, which had been attached by the petitioner before the court below was brought to sale in another suit even though there was an attachment against the said property. It is interesting to note that the amount for which the 24 cents was sold was Rs.62,343/-. One must note that in the suit property there was a building also. From the records, it is seen that the property is situated in an important locality and would have, according to the petitioner, fetched at least FAO. 193/2007. 4 Rs.50,000/- per cent. Property was sold for a very low price. 5. Lower court has noticed that on going through the records, it is seen that the decree holder had filed a petition to permit him to bid in the auction to be held on 3.6.2005 itself. No orders have been passed on the said application. Since no orders are obtained by the decree holder, to bid in the auction, it is an act apparently in contravention of Rule 72 of Order XXI of the Code. Certainly this a serious illegality and irregularity and is in contravention of the provisions of the Code. The lower court has also noticed that there was an omission on the part of the execution court to fix the upset price. It is understood that the value suggested for the property earlier was Rs.3,00,000/-. 6. Apart from the above facts, it is not seen whether the court has applied its mind to find out that the entire property needs to be sold for satisfying the decree in O.S. 397 of 2003. Going by Order XXI Rules 64 and 66 of the Code it was incumbent on the part of the court to ascertain whether sale of a portion of the property is sufficient to satisfy the decree. No such attempt has been made . That also FAO. 193/2007. 5 vitiates the sale. 7. It was considering the above facts that the court below was inclined to hold that the sale is vitiated. Learned counsel appearing for the appellant was unable to show any illegality, irregularity or infirmity in the order. The result is that the order does not call for interference and appeal is accordingly dismissed. P.R. Raman, Judge P. Bhavadasan, Judge sb.