IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 WP(C).No. 3076 of 2009(N) ------------------------- AGAINST THE ORDER IN EP 158/2005 IN OS.509/2004 of MUNSIFF COURT, CHITTUR .................... PETITIONER(S): --------------- ARUCHAMY, S/O.CHAMY, RESIDING AT THEMBARAMADA, THEKKEDESAM VILLAGE, CHITTUR TALUK. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): --------------- KASU, S/O.KUNCHAYI, RESIDING AT KALIMENON CHALLA, KANNIMARI, PERUMATTY VILLAGE, CHITTUR TALUK. ADV. SRI.VINOD KUMAR.C THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 3076/09) PETITIONER'S EXTS.: EXT.P1: TRUE COPY OF THE EXECUTION PETITION NO.158/05 DATED 30.5.2005 FILED BEFORE THE MUNSIFF'S COURT, CHITTUR. EXT.P2: TRUE COPY OF THE COUNTER STATEMENT DATED 16.8.05 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, CHITTUR. EXT.P3: TRUE COPY OF THE DRAFT SALE PROCLAMATION. EXT.P4: TRUE COPY OF THE DSP DATED 16.7.07 SUBMITTED BY THE DECREE HOLDER. EXT.P5: TRUE COPY OF THE PETITION FOR SETTING ASIDE SALE AS E.A.NO.323/07 DATED 2.9.2007. EXT.P6: TRUE COPY OF THE OBJECTION TO E.A.NO.323/07 DATED 16.10.2007. EXT.P7: TRUE COPY OF OBJECTION TO THE FRESH DSP DATED 10.6.2007 FILED BY THE PETITIONER. EXT.P8: TRUE COPY OF ORDER DATED 15.12.2007 IN E.A.NO.323/07 OF THE COURT OF THE MUNSIFF, CHITTUR. EXT.P9: TRUE COPY OF THE DELIVERY WARRANT DATED 4.12.2008 AND ENDORSEMENT. EXT.P10: TRUE COPY OF THE COMMUNICATION DATED 8.1.2009 FROM THE MUNSIFF COURT, CHITTUR TO THE TAHSILDAR/VILLAGE OFFICER. EXT.P11: TRUE COPY OF DELIVERY WARRANT DATED 24.12.2008. ANNEXURE I: STATEMENT WHICH WAS FILED BEFORE THE EXECUTION COURT AS E.A.NO.480/2008 IN E.P.NO.158/2005 IN O.S.NO.509/2004 BEFORE THE MUNSIFF COURT, CHITTUR. ANNEXURE 2: TRUE COPY OF THE ORDER PASSED IN FAO NO.307/08 DATED 12.8.09 OF THIS HONOURABLE COURT. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.3076 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 28th October, 2009 JUDGMENT Petitioner is the judgment debtor in E.P.No.158 of 2005 in O.S.No.509 of 2004 on the file of the Munsiff Court, Chittur. Decree executed in the above suit was one for money passed in favour of the respondent/decree holder. In execution of the decree, 50 cents of property comprised in Survey No.305/1 in block No.40 of Kuttipallam village belonging to the judgment debtor was attached and brought to sale negativing the objections raised by the petitioner/judgment debtor resisting the execution. After confirmation of the sale, when warrant was issued to deliver the property to the decree holder who had knocked down the bid in sale, after getting permission from the court to do so, the present writ petition was filed by the judgment debtor to quash the delivery warrant. Petitioner moving the writ petition sought for indulgence of the court to get back the properties sold in favour of the decree holder undertaking to pay the entire sale price, sale commission, interest on the sale amount, cost of stamp paper etc. Notice was ordered to the respondent. Respondent, on appearance, submitted that he is prepared to forgo his right over the W.P.C.No.3076/09 - 2 - properties sold in execution of the decree subject to payment of the decree amount and other expenses incurred by him including the purchase of stamp paper. Pursuant to mediation between the parties, the judgment debtor had deposited a sum of Rs.65,700/- before the execution court towards the decree debt, sale commission, interest etc. due to the decree holder. A statement has been filed by the counsel for the petitioner as to how the calculation has been arrived at with respect to the deposit made in the court. Learned counsel for the decree holder has no objection to the statement and also the calculation of the sum made thereunder. However, the learned counsel for the respondent/decree holder submitted that the decree holder had paid an amount of Rs.3786/- over and above the decree debt towards the sale price and that amount deposited before the court below be refunded to him along with the deposit now made by the judgment debtor, after setting aside the sale. 2. Normally, when a sale is confirmed, it is not open to the court to set aside such sale for the reason that the parties have reached some sort of settlement between them. On the materials produced and hearing the counsel on both sides, it is seen that the sale conducted in respect of 50 cents of property for a sum of W.P.C.No.3076/09 - 3 - Rs.60,100/- was grossly disproportionate to the value of the property. Though the judgment debtor had contended that the property would fetch more than Rs.Two lakhs per acre, he did not adduce any evidence to prove the value. That, however, would not absolve the court in determining the value of the property before proceeding with the proclamation for sale. The court had restricted the sale only to 50 cents out of the 90 cents of property by itself is not sufficient to conclude that there was due compliance of the mandate under Order 21 Rule 66 of the Code of Civil Procedure. I am inclined to hold in the given facts of the case that there was material irregularity in the matter of conduct of the sale and it had vitiated all pursuant steps taken for the sale of the property. Now that the parties have agreed to settle the matter and, it is seen, that the sale is vitiated by material irregularity, I order for setting aside that sale. 3. The amount of Rs.65,700/- deposited by the petitioner/judgment debtor before the execution court shall be released to the respondent/decree holder towards satisfaction of the decree debt, sale commission, expenses incurred for the sale etc. The amount of Rs.3786/- deposited by the decree holder over and above the decree debt in tune with the sale price shall also be refunded to W.P.C.No.3076/09 - 4 - him. Since the sale certificate has already been issued, the execution court will cancel the deed so that the decree holder can claim the amount on the stamp paper from the District Collector treating the same as defaced subject to deduction of the expenditure as per the statute. The respondent/decree holder can approach the District Collector for refund of the same who shall allow refund of the amount after deducting the expenditure as per the statute. The execution court shall also intimate the Sub Registry as to the cancellation of the sale certificate on setting aside of the sale, as per rules, so that necessary entries on cancellation are recorded in the relevant registers maintained in that office. Writ Petition is disposed as indicated above. srd S.S. SATHEESACHANDRAN, JUDGE