IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 FAO.No. 307 of 2008() --------------------- AGAINST THE ORDER DATED 28/10/2008 IN EA 23/2004 IN EP 122/01 IN OS.607/1995 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/PETITIONER/JUDGEMENT DEBTOR/DEFENDANT:- ------------- CHANDRASEKHARAN, S/O. CHERINKAL KRISHNAN AGED 65 YEARS, PATTANCHERRY, CHITTUR TALUK, PALAKKAD. BY ADV. SRI.K.P.BALAGOPAL RESPONDENT(S): --------------- M.VISWANATHAN, S/O. MADHAVAN, AGED 58 YEARS, KADAMBIDI HOUSE, CHITTALACHERY AMSOM, ALATHUR TLUK, PALAKKAD. ADV. SRI.P.R.VENKETESH FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- F.A.O. No.307 of 2008 ------------------------------- Dated this the 12th August, 2009 J U D G M E N T Raman, J. The appellant is the judgment debtor. The suit, O.S.No.607 of 1995, on the file of Sub Court, Palakkad was decreed in favour of the plaintiff. In execution of the money decree, E.P. was filed. The property of the appellant was brought to sale and purchased by the decree holder himself for an amount of Rs.1,40,639/=. The sale was conducted on 19.12.2003. The extent of the property is 1.02 acres of paddy field. The upset price fixed was Rs.1,35,000/=. After the sale, the appellant-petitioner preferred the present E.A.No.23/2004 for setting aside the sale under Order XXI Rule 90 of Code of Civil Procedure, inter alia contending that that the court below did not apply its mind as to whether such a large extent of 1.02 acres of paddy field is to be sold or only a portion of it need be sold for F.A.O.No.307 of 2008 2 satisfying the decree debt. In support of the plea, appellant also produced documents and stated that as per that document, five cents was sold for Rs.25,000/=. But the court below found that it cannot be compared with plaint schedule property in any manner. It is pointed out that the property covered by the document is also in the same survey number. No discussion is made regarding the same. Other documents said to have been produced is not even referred to. In the circumstances, it is contended that the court below ought to have allowed the application and set aside the same. 2. Per contra, the learned Counsel, Sri.P.R.Venkitesh, appearing on behalf of the respondent would contend that the property was sold after Rule 66 notice. No objection was raised that the property is situated in a remote area and it will fetch the more value than the same has been sold. If, as a matter of fact, the appellant had any such contention that the property will fetch more than the upset price F.A.O.No.307 of 2008 3 fixed, nothing prevented him from producing materials to show that it will fetch a higher price. Further, it is shown that except producing the documents, nobody was examined to prove those documents. In such circumstances, it is contended that court below had applied its mind to all the aspects of the matter and hence contended that no interference is called for. 3. We have heard both sides. The property is situated in a remote area, but the extent of the property is 1.02 acres of paddy field. The property is still in the possession of the judgment debtor. The decree is for money and it is only in the absence of other purchasers that the property was purchased by the decree holder. But then, the question would be whether it is necessary to sell the entire property or only a portion is required to be sold. There is a duty cast on the court, as held by this Court in Thankamma v. Leelamma (2008 (2) KLT 500), before the property is put to sale. If so, there will be material irregularity in the manner of conduct of the sale. The appellant is F.A.O.No.307 of 2008 4 also equally at fault in not adducing any evidence in support of his contention that his property will fetch higher value. Except producing two documents, he did not mount the box nor any person was examined. Placed in such a position, the course open to us is to direct the judgment debtor to deposit the entire amount that may be due to the decree holder within a reasonable time, as a condition for setting aside the sale. Accordingly, we direct that if an amount of Rs.1,89,000/= is deposited by the appellant herein within a period of six weeks from today, the sale will stand set aside, failing which this appeal will stand dismissed and it will be open to the decree holder to take further proceedings in accordance with law. The stamp paper, if any, produced by the decree holder will be returned. In case, the sale certificate is already issued, the court will cancel the deed so as to enable the respondent to claim refund of the amount from the District Collector treating the same as defaced, of course after deducting F.A.O.No.307 of 2008 5 the expenditure as per the Statute. The appellant shall approach the District Collector for refund of the same, and the District Collector will allow refund of the amount, after deducting the expenditure, as per the Statute. The appeal is allowed as above. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj.