IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 FAO.No. 216 of 2007() --------------------- EA.2377/O6, EP.588/04 IN E.P. 588/2004 IN OS.185/2001 of II ADDL.SUB COURT,THRISSUR APPELLANT/PETITIONER/2ND JUDGMENT DEBTOR ------------------------------------------------------- SAIDALI HAJI, S/O.ABDUL RAHIMAN, AGED 47 YEARS, NEMMINI DESOM, THAIKKAD VILLAGE, CHAVAKKAD TALUK. BY ADV. SRI.N.J.JOHNSON RESPONDENT: RESPONDENT/DECREE HOLDER --------------------------------------------------- THE FEDERAL BANK LTD., KUNNAMKULAM BRANCH, REPRESENTED BY ITS BRANCH MANAGER, KUNNAMKULAM, THRISSUR DISTRICT. ADV. SRI.N.P.SAMUEL THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 24/07/2009, THE COURT ON THE SAME DAY, PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. = = = = = = = = = = = = = = = = = = = F.A.O. 216 OF 2007 = = = = = = = = = = = = = DATED THIS, THE 24TH DAY OF JULY, 2009. J U D G M E N T Bhavadasan, J. Aggrieved by the order dated 2.6.2007 in E.A. 2377/2006 in E.P. 588/2004 in O.S. 185/2001, petitioner before the court below has come up in appeal. 2. Petitioner was the second judgment debtor in O.S. 185/2001, who has suffered a decree. The decree was put in execution and the property involved in the proceeding was brought to sale. Sale was conducted on 16.11.2006 which was confirmed. Thereafter, petitioner filed a petition under order XXI Rule 90 of the Code of Civil Procedure to set aside the sale on the ground of material irregularity and fraud. The main contention was that though the property was mortgaged to the respondent Bank, that he had entered into an agreement for sale of the same with a third person for an amount of Rs. 15,00,000/- which sale had to be taken place on 15.2.2007 and in the mean time, the sale as per the decree was conducted on 16.11.2006. It is further contended that the court has not invoked the provisions under Order XXI Rule 69 and 83 of the Code of Civil Procedure. It also did not take note of the fact that the F.A.O.216/2007 2 petitioner had filed an insolvency petition for settling his debts. The sale was not properly conducted and therefore, it is vitiated. 3. The petition was resisted by the decree holder. It was pointed out that the petition is not maintainable. It was contended that the reserve price fixed by the court is the maximum price the property could fetch and the claim to the contrary is untenable. It was denied that the sale is vitiated due to any reason. 4. It is seen from the order of the court below that evidence was not adduced by either side. The court below found that the petitioner has not succeeded in proving his clam and accordingly, dismissed the petition. 5. It is not in dispute that the appellant/petitioner has suffered a decree for a sum of Rs.8,56,741.30. Execution was taken out and the property was brought to sale. It may be noted that the property was mortgaged to the respondent/ Bank. The court below, after considering the provisions of Order XXI Rule 90 of the Code of Civil Procedure, found that the petitioner/appellant has not established any material irregularity or fraud or brought out anything to show that he has sustained substantial injury by reason of such irregularity or fraud. The court below has also taken note of the fact that a portion of the property was not put for sale as it was F.A.O.216/2007 3 insufficient and also that no such contention was taken by the judgment debtor and the entire property was put for sale and since the mortgagee wanted to buy the property, due publication was also made and has complied with Order 21 Rule 72A also. 6. Even though several contentions were taken by the petitioner, he did not feel it necessary to substantiate any one of the same. True that material irregularity and fraud were alleged; but no evidence whatsoever is seen adduced in this regard. The court below did not find any ground as to why the sale is to be set aside. No grounds are made out to interfere with the order passed by the court below. The court below has considered all the aspects of the matter and found that there is no basis for the allegations made by the appellant/petitioner. The appeal is devoid of merit and is accordingly dismissed. P.R. RAMAN, JUDGE P. BHAVADASAN, JUDGE. KNC/-