IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 CRP.No. 1005 of 2006() ---------------------- CMA.33/2004 of II ADDL.DISTRICT COURT,ERNAKULAM OS.969/1996 of PRL.M.C.,ERNAKULAM .................... REVN. PETITIONER(S)/APPELLANT/JUDGMENT DEBTOR: ----------------------------------------------- AMBIKA, AGED 43, W/O.MANI, PULIKAPARAMBIL VEEDU, CHOTTANIKARA DESOM, KURIKKAD VILLAGE. BY ADV. SRI.O.V.ABRAHAM SRI.K.V.JAYACHANDRAN SRI.RAJU V.MATHEW RESPONDENT(S)/DECREE HOLDER & AUCTION PURCHASER: ------------------------------------------------- 1. K. RAJESWARI, W/O.VISWANATHAN, SREEVATSAM VEEDU, CHOTTANIKARA KURIAKAD VILLAGE. 2. P.G. SHAJI, S/O.GEORGE, PLACKIL VEEDU, ERUVELI, KANAYANNUR P.O., CHOTTANIKARA. ADV. SRI.T.RAJASEKHARAN NAIR FOR R2 SRI.A.BALAGOPALAN FOR R1 SRI.BENNY M. JOHN FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON 25/08/2009 PASSED THE FOLLOWING: ORDER ON I.A.NO.3570/2006 IN C.R.P.NO.1005/2006 DISMISSED. 25.8.2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.1005 OF 2006 (B) ----------------------------------- Dated this the 25th day of August, 2009 O R D E R The revision is directed against the judgment dated 11.8.2006 in C.M.A.No.33 of 2004 passed by the District Judge, Ernakulam. Petitioner is the judgment debtor in E.P.No.77 of 1999 in O.S.No.969 of 1996 on the file of the Munsiff Court, Ernakulam. The 1st respondent is the decree holder and the 2nd respondent, the auction purchaser. The 1st respondent filed the above suit against the petitioner for specific performance of a contract. Trial court dismissed the suit. Against the dismissal, an appeal was preferred. Appeal was allowed to the extent of allowing the 1st respondent to recover a sum of Rs.50,000/- with interest at the rate of 12% from the date of suit till the date of decree, and, thereafter, at 6% till realisation. In execution of that decree, the 1st respondent proceeded against five cents of land belonging to the petitioner. Accepting the contentions of the petitioner, proclamation for sale was settled in respect of two cents of CRP.1005/06 2 land, fixing an upset price of Rs.35,000/- per cent. In the auction that followed the 2nd respondent purchased the land at a price of Rs.1,10,000/-. Petitioner thereafter filed an application under Order XXI Rule 90 of Code of Civil Procedure to set aside the sale contending that the sale is vitiated by material irregularity. The execution court dismissed that application. Against which, petitioner preferred the appeal, and that too was dismissed by the learned District Judge. Judgment rendered in the appeal by the learned District Judge is challenged in this revision. 3. Previously, this Court has disposed the revision setting aside the sale holding that the property was undervalued when it was brought to sale. Before setting aside the sale, this Court had passed an order dated 9.2.2007 by which the petitioner/judgment debtor was extended an opportunity to deposit the sale price with the sale commission and value of the stamp paper within the time limit fixed. While the petitioner sought for a day's time to express his willingness to the order, on the next posting date, that is, CRP.1005/06 3 12.2.2007, the auction purchaser/2nd respondent expressed his inability to agree to the suggestion. This Court, after hearing the counsel on both sides thereupon passed an order setting aside the sale holding the property was grossly undervalued, and, thereby, the sale suffered from material irregularity. A review petition filed against the order dated 12.2.2007 by the 2nd respondent/auction purchaser, was disposed by order dated 13.3.2007 on the basis of the submissions of the petitioner/judgment debtor and decree holder/1st respondent that they had no objection to set aside the sale on condition of restoring the previous order dated 9.2.2007. The order setting aside the sale and subsequent order on the review petition was challenged by the 2nd respondent/auction purchaser filing a Special Leave Petition before the apex court. The apex court granting leave allowed that S.L.P and set aside the orders of this Court directing reconsideration of the applications filed by the 2nd respondent/auction purchaser. 4. The apex court, setting aside the previous orders passed by this Court has directed this Court to consider the CRP.1005/06 4 applications filed by the 2nd respondent/auction purchaser afresh. In the light of the directions given by the apex court, the review petition moved by the 2nd respondent has to be treated as having been allowed as the orders of this Court setting aside the sale stand annulled by the order passed in the S.L.P filed at the instance of the auction purchaser. So the question emerging for consideration is whether the revision petitioner/judgment debtor has made out a case for setting aside the sale as vitiated by fraud and material irregularity as canvassed in his application under Order XXI Rule 90 of Code of Civil Procedure. 5. I heard the learned counsel on both sides. The learned counsel for the revision petitioner/judgment debtor advanced some arguments, that true facts were not properly presented before the apex court while hearing and disposing the S.L.P. The arguments so canvassed can be noted only for its rejection as this Court is bound by the directions/orders given by the apex court. Only other circumstance referred to by the learned counsel for the revision petitioner/judgment CRP.1005/06 5 debtor is that the proclamation of sale was settled without noticing the upset price suggested by the judgment debtor and, later in sale the property was sold on a higher price of Rs.55,000/- per cent, as purchased by the auction purchaser. The price so fetched is indicative that the upset price shown as Rs.35.000/- was grossly inadequate, and there is force and substance in the contention raised that the value of the property was much more than what it was sold in auction, according to the counsel. I am afraid the submissions canvassed by the counsel are hardly sufficient to show that the sale is vitiated by material irregularity and fraud. The execution court as well as the appellate court, after examining the materials, has found that there was no material irregularity or fraud causing any substantial injury to the revision petitioner/judgment debtor. It has also been found that the auction has been conducted following all procedures prescribed. Sale can be set aside only if it is shown that it is vitiated by material irregularity and fraud, and, thereby, it has caused substantial injury to the judgment debtor. The property was sold at a price much higher than the upset price CRP.1005/06 6 as rightly pointed out by the appellate Judge is indicative that there were competitive bidders. It does not in any way indicate that the property was undervalued, but, on the contrary disclose that the sale price fixed was reasonable and adequate. The learned Munsiff has also taken note that the decree holder too had participated in the auction and was ready to purchase property upto a price of Rs.1,02,000/- but the property was knocked down in the auction for a higher price of Rs.1,10,000/- by the auction purchaser. Circumstances so presented in the case lend assurance that a proper sale complying with the formalities was conducted, and there is no merit in the challenge raised by the judgment debtor that it was vitiated by fraud and material irregularity. The revision is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp