IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 FAO.No. 46 of 2009( ) -------------------- AGAINST THE ORDER DATED 10/11/2008 IN EA.301/2008 IN EP.201/2007 in ARC 192/2005 of SUB COURT, MANJERI .................... APPELLANTS/PETITIONERS IN E.A: ------------------------------------------------ 1. SHAJAHAN, S/O.THEKKETHIL MUHAMMED, MULLIAKURISI DESOM, KEEZHATTUR VILLAGE PERINTHALMANNA TALUK. 2. PATHUMMA, W/O.THEKKETHIL MUHAMMED MULLIAKURISI DESOM, KEEZHATHUR VILLAGE, PERINTHALMANNA TALUK. BY ADV. SRI.P.PARAMESWARAN NAIR SRI.ABRAHAM THOMAS (PUTHURAN) RESPONDENTS/ RESPONDENTS IN E.A.: ------------------------------------------- 1. SECRETARY, PERINTHALMANNA SERVICE CO.OP. BANK, PERINTHALMANNA.PO., 2. BALAKRISHNAN, S/O.KALAPARA UNNIKUNHAN MULLIAKURISI DESOM, KEEZHATHUR VILLAGE, PERINTHALMANNA TALUK. BY ADV. SRI.A.BALAGOVINDAN FOR R2 SRI.K.SANEESH KUMAR FOR R2 SRI.V.RAJENDRAN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25/11/2009, THE COURT ON 30/11/2009 DELIVERED THE FOLLOWING: K. M. JOSEPH & JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - F. A. O. NO: 46 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th Day of November, 2009. JUDGMENT Joseph Francis J., This appeal is filed by the petitioners/ judgment debtors in E.A. No: 301 of 2008 in E.P. No: 201 of 2007 in A.R.C0 No: 192 of 2005 on the file of Sub Court, Manjeri. Respondents 1 and 2 herein are the first respondent/ decree holder and second respondent / auction purchaser in that E.A., which was filed under Order 21 Rule 90 of C.P.C. to set aside the sale conducted on 19.3.2008. 2. The facts of the case are briefly as follows: The 1st respondent herein has obtained an award as per A.R.C. No: 192/2005 for realisation of Rs.2,77,670/- with interest, against the petitioners herein. The 1st respondent has filed an execution petition as E.P. No : 201/2007 before the Sub Court Manjeri for realisation of an amount of Rs.3,90,087/- being the decree amount with interest and costs. In the Execution Petition, the 1st respondent F. A. O. NO: 46 OF 2009 :2: has sought to realise the amount by sale of the properties scheduled to the Execution Petition. The 2nd petitioner, who was the absolute owner in possession of 15 cents of property in Sy. No:53/46 of Keezhathur Village of Perinthalmanna Taluk and it was said property which was mortgaged with the bank. In the execution proceedings, the appellants were ex parte and the property scheduled has been put to auction and the 2nd respondent has bid the auction for an amount of Rs.4,00,100/-. The auction was conducted on 19.3.2008 and it was confirmed on 26.5.2008. Since the appellants were ex parte in the execution proceedings they were not aware of the sale and subsequent confirmation thereof. However, the appellants have came to know of the sale and its confirmation, subsequently and immediately thereafter the appellants have filed an application before the execution court for setting aside the sale. 3. In the application to set aside the sale, the appellants have contended that the sale was bad in law and the same was vitiated by material irregularity and improper valuation. It was contended that the property would fetch an amount of Rs.30,000/- per cent and that the building thereon would have a value of Rs.2,00,000/-. The F. A. O. NO: 46 OF 2009 :3: appellants have contended that the sale was conducted in such a fashion that the prospective bidders could not participate in the auction and accordingly the best available price could not be secured for the property. It was further contended that there are prospective purchasers for the above property to purchase the same for at least Rs.6.5 lakhs. The appellants have further stated that they are ready and willing to deposit the amount covered by the decree and to get the property re-conveyed in their name. It was also pointed out that even the sale of a portion of the property would be sufficient to clear the debt due to the bank. Under these circumstances it was prayed that the sale held on 19.3.2008 and confirmed in favour of the 2nd respondent herein may be set aside. 4. Respondents 1 and 2 filed separate counter stating that the sale was conducted in accordance with the provisions of C.P.C. The petitioner remained ex parte in spite of receipt of Rule 66 Notice. The petition is barred by limitation. 5. For the purpose of enquiry, PW1 and PW2 were examined. The learned Sub Judge on considering the matter dismissed that petition. Against that order, the petitioners/ judgment debtors filed F. A. O. NO: 46 OF 2009 :4: this appeal. 6. We heard the learned counsel for the appellants and the learned counsel for the respondents. 7. It is an admitted fact that the property having an extent of 15 cents comprised in Sy. No: 53/46 with a house, was sold in court auction on 19.3.2008 and the second respondent purchased that property for Rs.4,00,100/- and the sale was confirmed on 26.5.2008. The petition to set aside the sale was filed on 29.5.2008. 8. In the decision reported in Boban v. Sajith Kumar and another (A.I.R. 2004 Kerala 181), it was held that under Article 127 of the Limitation Act, application to set aside the sale in execution of decree has to be filed within 60 days from the date of sale. In the present case, the sale was conducted on 19.3.2008 and the application to set aside the sale was filed only on 29.5.2008, which is beyond 60 days from the date of sale and therefore that petition cannot be entertained. 9. The main grievance of the appellants is that there was no paper publication with regard to the sale of the property. As observed by the learned Sub Judge, the provisions contained in F. A. O. NO: 46 OF 2009 :5: C.P.C. do not mandate the publication in the newspapers with regard to the sale. 10. Learned counsel for the appellants invited our attention to the decision of this court reported in Thankamma v. Leelamma (2008(2) KLT 500, in which it was held that the contention that a portion of the property would fetch the decree amount even if not raised before the proclamation of sale, can be taken up in the proceedings under Order XXI Rule 90 C.P.C. 11. Learned counsel for the appellants invited our attention to the decision of the Apex Court reported in Sri Ram Maurya v. Kailash Nath and others (A.I.R. 2000 S.C. 3402), in which it was held in the absence of the pleading that on account of material irregularity in conducting the sale, the petitioners were put to substantial injury, auction cannot be set aside. 12. In the decision of this court reported in C.C. Sivaprasad v. K. Sasidharan (2006 (1) K.L.J. 841, it was held that “the legal position is now well - settled. By reason of any material irregularity either in publishing or conducting the sale, a sale cannot be F. A. O. NO: 46 OF 2009 :6: set aside unless the applicant establishes that by reason of such irregularity, he sustained substantial injury. Without showing that the irregularity resulted in substantial injury, no sale could be set aside on the ground of material irregularity. For the irregularity, substantial injury cannot be assumed or presumed.” 13. On perusing the lower court records, it is seen that Order 21 Rule 22 and Rule 66 notices were personally served on the judgment debtors 1 and 2 but they remained exparte and they did not raise any objection to the sale proclamation. In the affidavit filed in support of the petition, the judgment debtors admitted that the decree holder has complied with the provisions contained in Order 21 Rule 66 C.P.C in conducting the sale. 14. According to the appellants, the property would fetch Rs.6,50,000/- and that PW2 was ready to purchase that property for that amount. But when cross- examined, PW2 admits that he has no document to show that he was having that amount with him to purchase that property. Admittedly that property was mortgaged to decree holder by judgment debtor no:2. PW1 admits that after the F. A. O. NO: 46 OF 2009 :7: mortgage of the property, judgment debtor no:2 sold the property to one Mr. Ramadas for a sale consideration of Rs.2,50,000/- as per sale deed No: 1735 of 2004. The appellants have not produced any document to show that the petition scheduled property would fetch more than Rs.4,00,000/- Since the appellants have failed to show that the impugned sale is vitiated by material irregularity or fraud in publishing or conducting it and that the appellants have sustained substantial injury, the learned Sub Judge is justified in dismissing the petition to set aside the sale. Accordingly this appeal is dismissed. The parties are directed to suffer their respective costs in this appeal. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/