IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 FAO.No. 57 of 2009() -------------------- E.A.415/08 IN E/P/149/02 IN OS.338/2008 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANTS/PETITIONERS IN E.A. -------------------------------------------------- 1. O.K.PADMINI, AGED 51 YEARS, W/O.NARAYANAN NAIR, KARUTHEDATHU HOUSE, KUTTIKKATTOOR AMSOM, PAINGATTUPURAM DESOM, KOZHIKODE. 2. K.NARAYANAN NAIR, AGED 56 YEARS, S/O.GOVINDANKUTTY NAIR, KARUTHEDATHU HOUSE, KUTTIKKATTOOR AMSOM, PAINGATTUPURAM DESOM, KOZHIKODE. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT\S: RESPONDENTS IN E.A. ---------------------------------- 1. STATE BANK OF INDIA, KALLAYI ROAD BRANCH, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. 2. ABDU RAHIMAN, S/O.AHAMMED HAJEE, KAMPURATH HOUSE, KUTTIKKATTOOR, VALLIPPARAMBA P.O., KOZHIKODE. ADV. SRI.P.NARAYANAN FOR R2 SRI.P.V.SURENDRANATH FOR R1 SMT.P.A.REZIYA,MEDIATOR SRI.P.R.SHAJI,MEDIATOR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27.10.2009, THE COURT ON 3.11.2009 DELIVERED THE FOLLOWING: ORDER ON I.A.663/09 IN F.A.O. 58 OF 2009 DISMISSED 3.11.2009 SD/- K.M.JOSEPH, JUDGE SD/- M.L.JOSEPH FRANCIS, JUDGE /TRUE COPY/ K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 57 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of November, 2009 JUDGMENT Joseph Francis, J. Appellants are the petitioners and respondents are the respondents in E.A.No. 415 of 2008 in E.P.No. 149 of 2002 in O.S.No. 338 of 1998 on the file of the Subordinate Judge's Court, Kozhikode. The first respondent herein obtained a decree against the appellants in the above suit for an amount of rs.3,37,847/- together with interest at the rate of 14% p.a. from the date of suit till the date of realisation. Thereafter, the first respondent filed E.P. No. 149 of 2002 for realisation of the decree debt by the sale of the properties belonging to the appellants, which is having an extent of 30 cents and a residential building. The said property was sold in auction on 14.11.2007 for an amount F.A.O. No. 57 of 2009 2 of Rs.3,00,100/- The second respondent purchased the said property. The sale was confirmed on 5.2.2008. 2. Appellants came to know about the sale and confirmation of the sale when the second appellant obtained certified copy of the proceedings in the Execution Petition from the court below on 13.6.2008. They came to know that the property was sold for a very low price. Thereupon, they filed E.A. 415 of 2008 under Order XXI Rule 90 C.P.C. for setting aside the sale. The appellants allege that no notice was served on them prior to the sale. Therefore they could not file objection to the sale proclamation. The appellants came to know about the sale conducted on 14.11.2007 and confirmation thereof only on 13.6.2008. Therefore, the application was not barred by limitation, as they have filed the application within 60 days from the date of knowledge. 3. The second respondent/auction purchaser filed counter affidavit contending that the petition is barred by limitation. The F.A.O. No. 57 of 2009 3 second respondent denied the averment in the petition that the property would fetch an amount of Rs.40 Lakhs. According to him, the upset price of the property was fixed as Rs.6 Lakhs, which was very high. Therefore there was no bidders to purchase the property. Later the upset price was reduced to Rs.3 Lakhs by the court. When the property was put to sale, he had purchased the property for Rs.3,00,100/- The sale was confirmed in his favour on 5.2.2008 and Sale certificate was ordered to be issued to him. 4. The second respondent denied the averment that the appellant did not receive notice under Order XXI Rule 66 C.P.C. He contended that after receipt of the notice, the appellant filed objection and after hearing both sides that the upset price was fixed. The second respondent further contended that the appellants were represented by their counsel and they were aware of the proceedings in the execution court. F.A.O. No. 57 of 2009 4 5. The first respondent/decree holder also filed counter affidavit raising the very same contentions as that of the second respondent. 6. The Execution Court, on considering the matter, dismissed the petition on finding that there was no material irregularity or fraud in publishing or conducting the sale and that the petition is barred by limitation. Against that order, the petitioners/judgment debtors filed this appeal. 7. We heard the learned counsel for the appellants and the learned counsel for the respondents. 8. The learned counsel for the appellants submitted that no notice under Order XXI Rule 66 C.P.C. was issued to the appellants by the Execution Court and the property was sold in execution for an amount of Rs.3,00,100/- That property is having an extent of 30 cents with a residential building situated in an important area. The learned counsel for the appellants submitted that the property and the building will fetch more than Rs.40 F.A.O. No. 57 of 2009 5 Lakhs. The learned counsel for the appellants further submitted that fixation of lesser value of property itself is a material irregularity and therefore the sale conducted by the Execution Court is unsustainable. He also alleged violation of Order XXI Rule 69(2) of the Code. The learned counsel for the respondents supported the order. 9. The learned counsel for the appellants invited our attention to the decision of the Apex Court reported in Nani Gopal Paul v. T. Prasad Singh & ors. (AIR 1995 SC 1971), in which it was held that the Supreme Court or the Appellate Court would not remain mute spectators to obvious and manifest illegality committed in the conduct of court sales even if application not filed within the time prescribed. The learned counsel for the appellants invited our attention to the decision of the Apex Court in Desh Bandhu Gupta v. N.L. Anand & Rajinder Singh ((1994) 1 SCC 131), which is a decision rendered by a Bench of two Judges, in which it was held that F.A.O. No. 57 of 2009 6 service of notice under Order XXI Rule 66 C.P.C. to the judgment debtor is mandatory and the sale without notice is a nullity. 10. The learned counsel for the first respondent invited our attention to the decision of the Supreme Court rendered by a three member Bench in Dhirendra Nath Gorai & Subal Chandra Nath Saha & ors. v. Sudhir Chandra Ghosh & ors. (AIR 1964 SC 1300), in which it was held that when judgment debtor, who received the notice of proclamation, did not attend the drawing up of the proclamation or did not object to the non- compliance with Section 35 of the Bengal Money Lenders Act and by non-observance of the provisions of that section, no substantial injury was caused to the judgment debtor, the sale is not liable to be set aside in an application under Order XXI Rule 90 C.P.C. 11. In the decision reported in Saheb Khan v. Mohd Yousufuddin & ors. ((2006) 4 SCC 476) it was held that the F.A.O. No. 57 of 2009 7 twin conditions precedent for setting aside the sale are :- (1) establishing a material irregularity or fraud and (2) establishing to the satisfaction of the court that material irregularity or fraud had resulted in substantial injury to the applicant. Fulfilling only one of the said conditions is not sufficient. 12. The first respondent/decree holder obtained a decree in O.S.No. 338 of 1998 on the file of the Sub Court, Kozhikode for realisation of an amount of Rs.3,37,847/- together with interest by the sale of the mortgaged petition schedule property. The decree holder filed E.P.No.149 of 2002 on 29.5.2002 for realisation of the said amount by the sale of the property having an extent of 30 cents and a residential building situated therein. The lower court records would show that Rule 22 notice was ordered to the judgment debtor in that petition on 30.5.2002. But the notice was actually issued to the judgment debtor under Order XXI Rule 66 C.P.C. On receiving that notice, the judgment debtors appeared before the Execution Court and they F.A.O. No. 57 of 2009 8 filed counter on 31.12.2002 stating that the decree schedule property and the building therein together would fetch more than Rs. 20 Lakhs and the upset price of the property shown in the proclamation schedule is very low and that the sale of a portion of the property is sufficient for the realisation of the decree debt. Therefore, the argument of the learned counsel for the appellants that the appellants did not get Rule 66 notice is not correct. The lower court records produced would show that the upset price of the property was fixed as Rs. 6 Lakhs on 3.2.2003 after hearing the decree holder and the judgment debtors. The property was put to sale several times and as there was no bidders the sale could not be effected. Therefore the decree holder filed a petition to reduce the upset price and that petition was allowed and the upset price was reduced and the property was sold to the second respondent for a sum of Rs.3,00,100/- The second respondent deposited the sale consideration and the sale was confirmed on 5.2.2008 and sale certificate was ordered to be given to the second respondent. F.A.O. No. 57 of 2009 9 13. The lower court records would show that the property was proposed to be sold on 29.9.2003. The judgment debtors filed E.A.1291 of 2003 on 27.9.2003 to stop the sale on the ground that there are some mistakes in the schedule of proclamation. When the property was again put to sale on 1.12.2003, the judgment debtors filed E.A.1384 of 2003 on 27.10.2003 to stop the sale on the ground that the decree schedule property is a Kudiyirupu property and that E.A. was dismissed. The lower court records would further show that the judgment debtors were represented by counsel throughout the execution proceedings. As observed by the lower court, there is no material irregularity or fraud in publishing or conducting the sale. 14. The period of limitation for an application to set aside the sale in execution of the decree, including any application by the judgment debtors under Order 21 Rule 90 C.P.C., is 60 days under Article 127 of the Limitation Act. The sale sought to be set aside is dated 14.11.2007 and the present petition to set aside the F.A.O. No. 57 of 2009 10 sale is filed on 19.6.2008. Therefore, it is clear that the present petition is filed after the expiry of the period of limitation and that is barred by limitation. Even if there was sale in violation of Order XXI Rule 69, which is not alleged even by the appellants, the petition being barred the appellant cannot challenge the sale. Therefore we are of the view that the Execution Court rightly rejected the petition to set aside the sale. 15. Accordingly, this appeal is dismissed. There is no order as to cost. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm