IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 FAO.No. 1 of 2004() ------------------- AGAINST THE ORDER DATED 09/10/2003 IN EA. 473/03 IN EP 346/2001 IN OS.942/1994 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANT/PETITIONER/JUDGEMENT DEBTOR: --------------------------------------------------------------------- BALAKRISHNAN, AGED 52 YEARS, S/O. NARAYANATHOTTATHIL NARAYANAN, KODAKARA VILLAGE AND DESOM, MUKUNDAPURAM TALUK. BY ADV. SRI.K.S.BHARATHAN RESPONDENT(S)/RESPONDENT/DECREE HOLDER: --------------------------------------------------------------------- SADANANDAN, S/O. NARAYANATHOTTATHIL NARAYANAN, KODAKARA VILLAGE AND DESOM, MUKUNDAPURAM TALUK. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 1 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of May, 2009. JUDGMENT Bhavadasan, J, Aggrieved by the dismissal of E.A. No.473 of 2003 in E.P.346 of 2001 in O.S. 942 of 1994 for setting aside the sale, petitioner before the court below has come up in appeal. 2. The appellant suffered a decree and in execution of the said decree, his property was brought to sale. Grievances of the petitioner are that the the property had been sold for a pittance and that it was unnecessary to sell the whole property. According to him, sale of a portion of the property would have been sufficient. 3. The court below felt that the property had been sold for a proper price and objection to the same was not entertainable. 4. Learned counsel for the appellant brought to the notice of the court below that even though he had suggested an upset price, that was not included in the proclamation for sale. So also he contended that the property being situated near the National FAO. 1/2004.. 2 Highway, it would have fetched much more than what it had been received. 5. In execution the property was purchased by the decree holder himself, who is none other than the brother of the appellant. 6. It may be that the court need not adjudicate regarding the upset price, but as per Order XXI Rule 66, it is necessary to show the price suggested by the judgment debtor also. 7. In the decision reported in Desh Bandhu Gupta v. N.L. Anand and Rajinder Singh ((1994) 1 SCC 131) it has been held that the value of the property is a material fact, which has to be included in the proclamation for sale. As already stated, though the court might not have to adjudicate on the upset price, it is mandatory that the price suggested by the judgment debtor should be shown in the proclamation for sale. In the instant case, it has not been done. On that sole ground the order has to be vacated. The appeal is allowed and the order dated 9.10.2003 is set aside and the petition by appellant before the court below stands FAO. 1/2004.. 3 allowed. There will be no order as to costs. On receipt of the records, the court below will issue fresh notice to the parties, since the respondent has not entered appearance, and proceed in accordance with law. P.R. Raman, Judge P. Bhavadasan, Judge sb.