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. 365 of 2007() --------------------- AGAINST THE ORDER IN EA 24/06 IN EA 22/04 IN EP 16/04 IN AP.75/2001 of D.C.& SESSIONS COURT,THODUPUZHA .................... APPELLANTS/PETITIONERS/JUDGMENT DEBTORS 1 TO 3: --------------------------------------------------------------------------------- 1. P.P. VARKEY, S/O. PATHROSE, POLIYAKUDIYIL HOUSE, MACHIPLAVU P.O.,CHATTUPARA, MANNAMKANDAM VILLAGE. 2. K.K. SURENDRAN, S/O. KUNJAPPAN, KOTTAKKIYIL HOUSE, MACHIPLAVU P.O., CHATTUPARA, MANNAMKANDAM VILLAGE. 3. MARIYAMMA, W/O. PATHROSE, POLIYAKUDIYIL HOUSE, MACHIPLAVU P.O.,CHATTUPARA, MANNAMKANDAM VILLAGE. BY ADV. SRI.ALEXANDER PETER RESPONDENT(S): RESPONDENTS/DECREE HOLDER: -------------------------------------------------------------------------- 1. M/S. MAHARASHTRA APEX CORPORATION LTD., MANIPAL, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, P.K.REMESH SHENOY, BRANCH MANAGER, ERNAKULAM. 2. BENNY ANTONY, S/O. K.P. ANTONY, KARUVELIL VEEDU, NEAR P & T QUARTERS, COLONYPADY BHAGAM, ERUMATHALA KARA, ALUVA EAST VILLAGE, ALUVA TALUK. ADV. SRI.P.SHRIHARI FOR R1 SMT.P.VANI FOR R1 SRI.RENJITH B.MARAR FOR R2 SRI.L.RAJESH NARAYAN FOR R2 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. 365 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of July, 2009. JUDGMENT Bhavadasan, J, In a suit for money, decree holder instituted execution proceedings against the three judgment debtors for recovery of the amount. The immovable properties of the first judgment debtor was attached. Another 89 cents and additional 22 cents with a house was also attached. The properties were brought to sale. It is seen that the decree holder purchased the properties for an amount of Rs.1,01,300/- in an auction held on 27.5.2006. It is alleged that the property was purchased by the decree holder and their lawyers' associates for an amount of Rs.1,05,300/-. The claim is that it was unnecessary to sell all these properties for a meager decree amount. The market value of the property would come to over Rs.15,00,000/-. Again it is complained that the auction was held in violation of Rules 340 and 341 of Civil Rules of Practice. It is stated that fraud was played on the court to defeat the interests of the judgment debtors and to knock off the property for a song. It is FAO.365/2007. 2 stated that when the judgment debtors enquired at the office, they were told that the sale would take place at 2.30 p.m. on the appointed day. Believing the said statement, the judgment debtors had gone for lunch. When they returned by about 2 p.m., they were told that the sale had already been completed. The judgment debtors allege connivance between the court officers and the decree holder. Pointing out serious irregularities and illegalities, the second judgment debtor instituted E.A.24 of 2006 in E.A.22 of 2004 in E.P. 16 of 2004 in O.S. under Order 21 Rule 90 of the Code of Civil Procedure to have the sale set aside. 2. The respondents in the petition defended the sale. It is pointed out that the claim of the petitioner that he was given to understand that the sale will be held at 2.30 p.m. is incorrect. The sale was infact held at 2 p.m. and he along with others bid the properties and one fourth of the auction amount was deposited. The balance three fourth was paid on 9.6.2006. Subsequently he filed E.A. 76 of 2006 for confirmation of auction. He contended that the claim that the properties would fetch a higher value cannot be accepted. Pointing out FAO.365/2007. 3 that there is no merit in the petition, he prayed for a dismissal of the petition. 3. The court below based on the materials available before it had come to the conclusion that there was no merit in the contention taken by the petitioner and accordingly dismissed the same. The said order is assailed. 4. In this appeal also, learned counsel appearing for the appellants reiterated the contentions taken up before the court below. It was pointed out that the court below has not addressed itself to the questions involved in the case and has simply chosen to disbelieve the appellants. None of the contentions taken up by the judgment debtor have been considered. The evidence of P.Ws.1 and 2 have not been evaluated properly and accordingly the order under challenge is unsustainable. 5. Though it seems to be slightly odd that the petitioners were told by the court officers that the sale would be held at 2.30 p.m., there are reasons to presume that it could be so. According to the appellants, when they enquired in the Nazir's office, they were told that FAO.365/2007. 4 the sale would be held at 2.30 p.m. The judgment debtor therefore went for lunch along with another person, who has interested in bidding the properties. When they came back, they were told that the sale had already taken place. It is to be noticed that a complaint had been lodged on the very next day to the learned District Judge. This conduct on the part of the appellants to a great extent shows that what they say could be true. Ext.A1 is the complaint so made, that was made soon after the incident had occurred. It cannot therefore be said that the claim of the appellants in this regard is false. 6. Then again, it is also seen that a complaint had been addressed to this court also, which is dated 29.5.2006, regarding the same matter. This fortifies to a certain extent the claim of the appellants. Further a large extent of the property had been sold for realising a meager amount. It is seen that three properties were put to sale. The total extent of the property comes to over 1.86 acres. There was nothing to indicate that there was any attempt from the side of the court to ascertain whether all the three properties had to be sold for realisation of the decree debt. From the records, what is gathered is the FAO.365/2007. 5 sale amount for two of the properties owned by the first appellant and the third appellant was for Rs.79,975/- and the second property was sold for Rs.25,325/-. 7. Considering the extent of properties, it cannot be said that this is the proper valuation. There is also nothing to indicate that the price claimed by the appellants were shown in the proclamation for sale. There is no evidence to show the manner in which the sale was actually conducted. Whatever that be, it is very clear that there has not been a proper consideration of the issues involved in this case by the court below. It will not be proper for this court to send back the matter for a reconsideration. Considering the various irregularities pointed out, it is felt that the sale needs to be set aside. 8. However, inspite of the infirmities, there was consensus between the parties regarding the settlement of disputes between them. The appellants agreed to deposit a sum of Rs.1,36,500/- to have the sale set aside, to which the respondents did not take serious objection. Considering all these facts, the appeal stands allowed on condition that the appellants shall deposit a sum of Rs.1,36,500/- FAO.365/2007. 6 before the execution court within six weeks from today. If the said amount is deposited, the sale shall stand set aside. If the amount is not deposited within the time stipulated, this appeal shall stand dismissed confirming the order of court below. P.R. Raman, Judge P. Bhavadasan, Judge sb.