IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 WP(C).No. 9555 of 2008(K) ------------------------- OS.45/2006 of SUB COURT, QUILANDY .................... PETITIONER: ------------ C.P.ABDULLA,AGED 55 YEARS, S/O MOIDEEN,CHAKKU PARAMBATH HOUSE, MEPPAYUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.SUNIL V.MOHAMMED RESPONDENT: ------------- RAMACHANDRAN NAIR, S/O APPUKUTTAN NAIR, MATTATHIYIL HOUSE, VALAYANAD AMSOM DESOM KOZHIKODE DISTRICT. BY ADV. SRI.B.V.JOY SANKER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO 9555/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE SALE PROCLAMATION DT. 9.1.06 EXT.P2. COPY OF THE ORDER DT. 13.9.06 IN IA 220/06 OF THE MUNSIFF COURT, PAYYOLI EXT.P3. COPY OF THE ORDER DT. 13.9.06 IN EA 179/06 OF THE MUNSIFF COURT, PAYYOLI EXT.P4. COPY OF THE JUDGMENT DT. 20.8.07 IN CMA 1/07 OF THE SUB COURT, KOYILANDI RESPONDENT'S EXHIBITS: EXT.R1. COPY OF THE DEED NO.1199/96 OF MEPPAYYOOR SUB REGISTRAR OFFICE DT. 22.5.96 /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 9555 OF 2008 --------------------- Dated this the 25th day of March, 2008 JUDGMENT This writ petition is filed with a prayer to set aside Ext.P4 judgment. 2. The writ petitioner is the judgment debtor in OS 45/96 of the Munsiff court, Payyoli. In execution of the decree, the property was sold in auction and the decree holder had bid the same with the permission of the court,. Thereafter the petitioner moved EA 179/06 under Order XXI Rule 90 of the CPC for setting aside the same. The executing court did not find in favour of the petitioner and dismissed the same. It has been confirmed by the appellate court in CMA 1/07. 3. The point that arises for determination is whether there is any ground to interfere with the concurrent decisions rendered by the courts below. Under Order XXI Rule 90 an application can be filed to set aside the sale on the ground of material irregularity or fraud in publishing or conducting the sale. Order XXI Rule 90(2) prescribes that unless substantial injury is caused, the sale shall not be set aside as on the ground of irregularity or fraud. Order XXI Rule 90(3) envisages a situation that an application to set aside the sale cannot be entertained upon any grounds which the applicant could have taken on or before it on which the proclamation of sale was drawn up. Now the property, which is having an WPC NO 9555/08 2 extent of 16 cents, has been sold in auction with a residential house for a consideration of Rs. 1 lakh. The judgment debtor raised a contention that the property is worth more than Rs.30 lakhs. After hearing, the court fixed the upset price and proceeded to conduct the sale. The sale was posted on 4.2.06, which was subsequently adjourned to 2.3.06 then to 31.3.06 then to 24.5.06 and to 3.6.06. The sale was adjourned at the request of the judgment debtor. It was adjourned on the ground that the sale is to be conducted on the basis of very same proclamation. When four consecutive applications for adjournment of sale is filed with an agreement to proceed with the sale on the very same proclamation, he cannot turn around and say at a later point of time that the court has gone wrong in fixing the upset price. 4. It is true that there are catena of decisions of this court as well as of the Apex court that if the sale is to be effected the court has to do it applying its mind. When a person argues before the court that the sale price is inadequate or there has been mistake or fraud in publishing and conducting of sale, atleast he is expected to supply prima facie materials to the court regarding the same. Filing an application for setting aside the sale and sitting back at home cannot be termed as a reasonable ground for setting aside the sale. It was with his both eyes opened that he requested for adjournment of sale on the basis of the very same proclamation. It has WPC NO 9555/08 3 to be held that he did not mount the box to give any evidence in support of the contention regarding fraud or irregularity. The fraud or irregularity are matters which has to be proved by evidence. It is true that there cannot be any direct evidence for fraud but it has to be inferred from the materials available. Similarly it is a very well settled principle that there cannot be a finding of fraud on the basis of conjectures or surmises. There must be materials to show how the sale has been vitiated by fraud and how the publication has not been effected properly. A mere averment in the application to set aside the sale cannot be a substitute for proof. There has been decisions which holds that the mere inadequacy of consideration, even if true, may not be a ground to set aside the sale under Order XXI Rule 90 of the CPC. Both the courts below on analysis of the entire materials found that there is absolutely nothing forthcoming to attract the grounds under Order XXI Rule 90 to set aside the sale. They are concurrent finding of facts. I also do not find any further grounds to interfere with the decision rendered by the courts below and to arrive at a different finding. Therefore, the writ petition lacks merit and it is accordingly dismissed. M.N.KRISHNAN, JUDGE vps WPC NO 9555/08 4 WPC NO 9555/08 5 WPC NO 9555/08 6