IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 CRP.No. 627 of 2010() ------------------------------ AGAINST THE ORDER DATED 30/10/2010 IN EA.54/09,EP.60/08 IN OS.68/2006 of SUB COURT, CHENGANNUR .................... REVN. PETITIONER(S): JUDGMENT DEBTOR/1ST DEFENDANT: ------------------------------------------------------------------------------------------ K.SWAMINATHAN, S/O.KESAVAN, KARINGATTIL, ROHINI SADANAM, PERISSERI MURI, PULIYOOR VILLAGE, CHENGANNUR, NOW RESIDING AT NEW HOME, THITTAMEL, CHENGANNUR. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): PLAINTIFF: ------------------------------------------ R.RADHAKRISHNA PRASAD, S/O.K.R.RAMAKRISHNAN NAIR, HARISREE, PONNETH TEMPLE ROAD, KADAVANTHARA DESOM, ELAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.627 of 2010 --------------------------------------- Dated this 30th day of November, 2010 JUDGMENT Judgment debtor in E.P.No.60 of 2008 in O.S.No.68 of 2006 of the court of learned Sub Judge, Chengannur is the petitioner before me challenging auction sale of his property conducted by the executing court on 19-03-2009 vide a petition (E.A.No.54 of 2009) filed on 19-06-2009. That application was dismissed by order dated 30-10-2010 which is under challenge. It is contended by learned counsel that sale conducted by the executing court is illegal and that dismissal of the application cannot be sustained. According to the learned counsel, there was no attachment of property sold as required under Rule 54 of Order XXI of the Code of Civil Procedure (for short, “the Code”). Reliance is placed on the decision in M/s. Mahakal Automobiles and Anr. Vs. Kishan Swaroop Sharmal (2008(2)KHC 670). No notice was also served on petitioner under Rule 66(2) of Order XXI of the Code. 2. Since it was contended that there was no notice served on petitioner under Rule 66(2) of Order XXI of the Code and that there was also no proclamation schedule drawn up, I C.R.P.No.627 of 2010 : 2 : called for report from the learned Sub Judge. Learned Sub Judge has submitted his report dated 27-11-2010. I have perused the report and heard counsel for petitioner. 3. Decree was passed on 05-10-2006 for payment of `.18,00,000/- with interest @12% per annum from the date of suit and cost. That decree was put in execution in E.P.No.60 of 2008 (it is submitted by learned counsel that the decree is under challenge in R.F.A.No.25 of 2010 and that on I.A.No.169 of 2010 an order is passed that in case delivery of property is taken, respondent shall not encumber or sell the property without the permission of the court). As I stated, the property was sold on 19- 03-2009. Petitioner filed E.A.No.39 of 2009 to set aside the sale (obviously under Rule 90 of Order XXI of the Code) which was dismissed on 30-05-2009. Petitioner then filed E.A.No.40 of 2009 through another counsel for the same relief which was also dismissed. It is thereafter that on 19-06-2009 petitioner filed E.A.No.54 of 2009 purportedly under Sec.47 of the Code alleging that there was no attachment of the property sold and that no notice was served under Rule 54 or Rule 66(2) of Order XXI of the Code. C.R.P.No.627 of 2010 : 3 : 4. In the report submitted by the learned Sub Judge it is specifically stated that Rule 66 notice was ordered to the petitioner and personally served on him on 05-09-2008, petitioner appeared but, he did not file objection even after sufficient opportunity was given to him. Hence the execution petition was posted for further steps and proclamation schedule was drawn up and settled on 25-02-2009. The court fixed upset price on 20- 02-2009 at `.40,00,000/- and the execution petition was posted on 13-03-2009 for public auction. On 19-03-2009 sale was conducted for `..43,01,000/-. Learned Sub Judge also states that as per order on E.A.No.18 of 2009 respondent/decree holder was allowed to participate in the public auction and he purchased the property in auction. It is also reported that the sale was confirmed on 30-05-2009. 5. In the light of the above report, contention that petitioner was not served with notice under Rule 66(2) of Order XXI of the code and that there was no proclamation schedule drawn up cannot stand that has to fall to the ground. Then the question is whether absence if any, of the attachment of the property or alleged non compliance with Rule 64 of the Code as contended by learned counsel could be entertained. So far as the C.R.P.No.627 of 2010 : 4 : absence of attachment of property, if any is concerned, in the decision cited by the learned counsel the Supreme Court stated that when property is put up for auction to satisfy a decree of the court it is mandatory for the court to comply with the requirements of attachment of the property, proclamation of sale by public auction and sale by public auction. Eexplanation to Rule 90 of Order XXI of the code makes it explicitly clear that mere absence or defect in attachment of property shall not by itself be a ground to set aside the sale under Rule 90 of the Code. Hence even if it is assumed that there was absence of attachment under Rule 54 of Order XXI of the Code and consequently no notice under Rule 54 of Order XXI of the Code to the petitioner, that by itself is no ground to set aside the sale under Rule 90. 6. So far as contention regarding non compliance of Rule 64 of the Code is concerned, it is seen from the report of learned Sub Judge that petitioner was given sufficient opportunity to raise his objection to the valuation of the property and upset price but he did not avail of that opportunity. Nor is there any evidence adduced by petitioner to show that property was sold for any grossly inadequate price. I must also bear in mind that so far as allegations relating to post sale proceedings is concerned it C.R.P.No.627 of 2010 : 5 : can come only under Rule 90 of Order XXI of the Code. If that be so, petitioner has already filed two applications in the executing court under Rule 90 of Order XXI of the Code and the same were dismissed (learned counsel submits that one of those orders is under challenge in appeal). Since the earlier applications under Rule 90 of Order XXI of the code were dismissed, for that reason also E.A.No.54 of 2009 was not maintainable. I do not find reason to interfere with the impugned order. This petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-