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. 175 of 2007() --------------------- AGAINST THE ORDER DATED 30/05/2007 IN EA 521/06 EP 517/04 IN OS.394/2000 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT/PETITIONER/JUDGEMENT DEBTOR: ---------------------------------------------------------- ARUMUGHAN, S/O.NACHUMUTHU CHETTIYAR, AGED 55 YEARS, KMC NIVAS, MANNATH LANE,THRISSUR. BY ADV. SRI.P.GOPINATH MENON RESPONDENT(S): RESPONDENT/DECREE HOLDER: ---------------------------------------- VIJAYA KURIES PVT. LTD., THRISSUR. ADV. SRI.RANJITH XAVIER THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/07/2009, ALONG WITH FAO NO. 176 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO NOS.175 & 176 OF 2007 -------------------------------------------------------- Dated 23rd July 2009 Judgment BHAVADASAN, J. FAO No.175/07 arises from EA No.521/06 in EP No.517/04 in OS No.394/00 and FAO No.176/07 from EA No.429/06 in EP No.112/05 in OS No.1124/01 before the 2nd Additional Sub Court, Thrissur. Both the suits were for money and they were decreed against the appellants herein. The properties were brought to sale and the sale was held. As far as OS No.1124/01 is concerned, the decree holder purchased the property in auction. In OS No.394/00, it was purchased by the auction purchaser. Soon thereafter, the judgment debtor filed a petition under Order XXI Rule 90 to set aside the sale. It is seen that he also deposited the entire decree amount and moved an application to set aside the sale under Order XXI Rule 89. Both the petitions were dismissed. Hence these appeals. When the appeals were taken, it is submitted that the entire decree FAO 175 & 176/07 2 amounts have been deposited. The respondent in FAO No.176/07 stated that he is the auction purchaser and he will be satisfied if he is paid the decree amount and other amounts. It needs to be noticed that the property sold is 10 cents of land with a building therein in the heart of Thrissur town. Going by Order XXI Rule 64 and 66, it was incumbent on the part of the court below to enquire whether sale of a portion of the property would be sufficient to meet the decree amount. Even assuming the judgment debtor did not take up such a contention, it is obligatory on the part of the court below to consider that matter and thereafter conduct the sale. That has not been done in this case. The sale is liable to be set aside on that ground. It is submitted, in both the cases, the decree amounts have already been deposited. It is agreed between the parties that on deposit of an additional amount of Rs.10,000/-, the sale in both the cases can be set aside. In the result, these appeals are allowed and the sales are set aside on condition that the appellant in both the cases deposits an additional sum of Rs.10,000/- in each case, before the court below within 15 days from today. FAO 175 & 176/07 3 The respective auction purchaser and the decree holder can draw the amount from the court below. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 175 & 176/07 4