IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 FAO.No. 183 of 2007() --------------------- OS.461/2005 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT / DECREE HOLDER ------------------------------------------- ARYA DEVI,W/O.KOSSERY MANAYIL KRISHNAN NAMBOODIRI,POOVANI ROAD, KOLAZHI VILLAGE, THRISSUR TALUK BY ADV. SRI.SHOBY K.FRANCIS RESPONDENT(S): JUDGMENT DEBTOR & CLAIM PETITIONERS -------------------------------------------------- 1. ANTHONY,KOOTHURA HOUSE, TIRUR DESOM ,KOLAZHY VILLAGE, THRISSUR TALUK,THRISSUR DISTRICT. 2. NALINI,W/O.LATE RAGHAVAN, MENOTH PARAMBIL HOUSE,PERINGOTTUKARA P.O., THANIYAM VILLAGE, THRISSUR TALUK. 3. RADHA BAI,D/O.MENOTH PARAMBIL RAGHAVAN, W/O.DR. K.R.VIJAYAN, LOKAMANESHWARAM VILLAGE, KODUNGALLOOR TALUK, P.O.KODUNGALLOOR,680664, THRISSUR. ADV. SRI.U.O.JOSE SRI.K.A.SREEJITH FOR ADDL.R4 & 7 SRI.JIJO PAUL FOR ADDL.R6 & 8 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO NO.183 OF 2007 -------------------------------------------------------- Dated 23rd July 2009 Judgment RAMAN, J. This is an appeal against the order in EA No.1350/06 in EP No.349/05 in OS No.461/05 of Sub Court, Thrissur. An extent of 25 acres of land, comprised in Survey Nos.498/3, 498/4, 498/1, 499/2, 500/2, 500/4 and 495 of Viyyur village was put for sale in execution of the decree for an amount of Rs.11,57,995/-. The property was said to belong to the petitioners. The upset price shown was only Rs.5,00,000/-. After the sale, the present application was file to set aside the same on the ground of material irregularity and fraud in the conduct of the sale, under Order XXI Rule 90 CPC. The fact remains that the judgment debtor did not raise any objection while the property was put to sale. This itself shows that there was some collusion. Though the question as to whether the property actually belonged to the petitioners, was not considered by the court below. But, it found FAO 183/07 2 that such a large extent of property could not have been sold for the realisation of the decree amount and the question as to whether a portion of the property will be sufficient for realisation of the decree amount was not considered as it is obligatory on the part of the court below to apply its mind in this regard and having not done so, the court itself set aside the sale. Therefore, in so far as the question as to whether the property belongs to the petitioners in the EA, having been not decided, it is unnecessary to go into that contention. The court below did not apply its mind before the sale of the entire property as to whether a portion of it would be sufficient to meet the decree amount. In such circumstances, none of the rights of the appellant can be said to be really infringed. Therefore, we find no merit in the appeal and it is accordingly dismissed. It is requested by the learned counsel for the appellant that he may be permitted to proceed to apply for a fresh sale. Since the EP is not closed as satisfied, such right of the appellant to bring the property to sale is not affected by the order under appeal and FAO 183/07 3 the court will proceed in accordance with law, if such an application is filed. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 183/07 4