IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 FAO.No. 100 of 2005() --------------------- AGAINST THE ORDER DATED 30/11/2004 IN EA 244/01 IN EP 63/96 IN OS.107/1992 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANT/DECREE HOLDER/AUCTION PURCHASER: ---------------------------------------------------------------------------- MOHAMMED SALI ABDUL HAMEED, SAJINA MANZIL, PERUMATHURA DESOM, SARKARA VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SMT.K.KUSUMAM SRI.SHAMMI VIJAYAN RESPONDENT(S): PETITIONER: ------------------------------------------- 1. ABDUL JABBAR ABDUL RAHIM, THOPPIL VEEDU, PERUMATHURA DESOM, SARKARA VILLAGE, CHIRAYINKIL TALUK, THIRUVANANTHAPURAM DISTRICT, REP. BY POWER OF ATTORNEY HOLDER ABDUL AZEEZ,SAFEENA ABDUL RAHIM THOPIL VEEDU,TAJA MANZIL,PERUMATHURA DESOM,SARKARA VILLAGE,CHIRAYINKIL TALUK,THIRUVANANTHAPURAM DIST. 2. MUHAMMED UMMER, LABBA SARA UMMAL, MURIPOZHIKKAL, THOPPIL, PERUMATHURA DESOM, SARKARA VILLAGE, THIRUVANANTHAPURAM DISTRICT. 3. MUHAMMED SALI ABUSA UMMAL, HULAILA MANZIL, ALAMCODE DESOM & VILLAGE, CHIRAYINKIL TALUK, THIRUVANANTHAPURAM DISTRICT. 4. RASHEEDA, JULAILA MANZIL, ALAMCODE DESOM & VILLAGE, CHIRAYINKIL TALUK, THIRUVANANTHAPURAM DISTRICT. ADV. SRI.P.V.ANIL FOR R1 & R2 SRI.M.DINESH FOR R1 & R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O No. 100 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of May, 2009. JUDGMENT Bhavadasan, J, Aggrieved by the order dated 30.11.2004 in E.A. 244 of 2001 in E.P.63 of 1996 in O.S.107 of 1992, counter petitioner before the court below has come up in this appeal. The sale conducted was set aside. The parties are hereinafter referred to as they were arrayed before the court below. 2. Decree in O.S.107 of 1992 was put in execution. That was a suit for money. 21 cents of property was brought up for sale. The first judgment debtor had filed an objection to the execution petition. But he had not disclosed the sale in favour of the petitioners. Proclamation was settled on 7.6.2001 and the property was sold on 9.7.2001 for a sum of Rs.1,05,000/-. On the very same day itself the petitioners before the court below has filed E.A. 158 of 2001 claiming right over the said property as provided under Order XXI Rule FAO. 100/2005. 2 58 of Code of Civil Procedure. Unfortunately that petition happened to be dismissed since there was no representation on behalf of the petitioners on that day. Thereafter the E.P. was posted for confirmation of sale to 12.9.2004. In the meanwhile, the present petition to set aside the sale was filed. 3. The main allegation of the petitioner was that the property that was attached and the property proclaimed for sale is totally different and that there was material irregularity in the conduct of sale. While the petitioners claimed that the decree holder and the judgment debtors are colluding, the decree holder contended that it is a collusion between the petitioner and the judgment debtor. Whatever that be, the court below considered the evidence adduced by the parties, the commission reports and the plan. After considering the above evidence, the court below came to the conclusion that the two properties are different as contended by the petitioner and that the property under attachment and the property that was sold are entirely different. If that be so, it FAO. 100/2005. 3 constitutes a material irregularity in the conduct of sale and that vitiates the sale itself. No grounds are made out to interfere with the impugned order. The appeal is without merit and accordingly it is dismissed. P.R. Raman, Judge P. Bhavadasan, Judge sb.