IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 CRP.NO. 454 OF 2010() --------------------------------- AS.21/2007 OF ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR OS.949/2000 OF PRL.MUNSIFF COURT,THRISSUR .................... REVN. PETITIONER – APPELLANT – RESPONDENT – DECREE HOLDER: -------------------------------------------------------------------------------------------------------- THOMAS, S/O. THARAKAN KOCHAPPU, PARAVATTANI DESOM, THRISSUR VILLAGE, THRISSUR TALUK. BY ADV. SRI.JIJO PAUL RESPONDENT – RESPONDENT – PETITIONER – JUDGMENT DEBTOR: ---------------------------------------------------------------------------------------------------- JOHN, S/O.CHOVOOKARAN IGNATIOUKS,' NEAR MICROWAVE PHONE STATION, THRISSUR MISSION QUARTERS, THRISSUR VILLAGE & TALUK, THRISSUR DISTRICT – 687 454. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== C.R.P. NO.454 of 2010 ==================================== Dated this the 31st day of August, 2010 O R D E R Decree holder in E.P. No.1761 of 2003 in O.S. No.949 of 2000 of the court of learned Principal Munsiff, Thrissur is the petitioner. He got a decree for recovery of money against respondent and brought the property of respondent – about 8 cents and residential building for sale. That property was sold on 08.01.2004 for Rs.83,000/-. Respondent filed E.A. No.3104 of 2004 under Order XXI Rule 90 of the Code of Civil Procedure Code (for short, “the Code”) to set aside the sale on various grounds including material irregularity and fraud in conducting and publishing the sale. Respondent claimed that property worth more than Rs.5 lakhs has been sold for Rs.83,000/-. That application was opposed by petitioner. Both sides adduced evidence. Executing court upheld the plea of respondent and found that it is without proper application of mind that upset price was fixed and property was sold for Rs.83,000/-. Accordingly application was allowed and the sale was set aside. Petitioner took up the matter in A.S.No.21 of 2007. Learned Additional Sub Judge C.R.P. No.454 of 2010 -: 2 :- vide judgment dated 21.07.2010 has confirmed the order on I.A. No.3104 of 2004 and hence this Revision. It is contended by learned counsel for petitioner that finding entered by the courts below are erroneous. 2. P.W. 2 is the Advocate Commissioner who inspected the property in the enquiry on E.A. No.3104 of 2004. Exhibit C1 is the report and Ext.C2 series are photographs of the property and residential building thereon taken in the presence of P.W.2, the Advocate Commissioner. Evidence on record would show that the property which is almost square shaped is bounded by tarred road on two sides and situated about 5 kms from Thrissur town within the limits of the Corporation. P.W2, after local enquiry assessed value of land at Rs.80,000/- per cent. P.W.3 claimed to be a purchaser of adjoining property and claimed that he purchased that property for Rs.1.25 lakhs per cent. He even offered to purchase the decree schedule property for that price. Respondent gave evidence as P.W1 and testified to his case. Contra evidence is that of R.W.1, a real estate broker. He claimed to have negotiated the sale as per Ext.B1, assignment dated 25.8.2003 where that property – 10 cents was purchased for Rs.1,00,000/-. Executing court observed that so far as evidence C.R.P. No.454 of 2010 -: 3 :- of R.W.1 and Ext.B1 is concerned there is no acceptable evidence as to the similarity between Ext.B1 land and the decree schedule property and hence evidence of R.W.1 and Ext.B1 cannot be accepted. Executing court accepted evidence of P.Ws.1 to 3 corroborated by Exts.C1 and C2 series and found that sale was without complying with the legislative mandate under Rule 64 of Order XXI of the Code for a substantially law amount and relying on the relevant decisions on the point set aside the sale. That has been confirmed by the appellate court. 3. The Supreme Court in Ambati Narasayya v. M. Subba Rao (AIR 1990 SC 119), Desh Bandhu Gupta v. N.L.Anand & Rajinder Singh ([1994] 1 SCC 131) and this Court in Gnan Das v. Paulin Moraes (1998 [2] KLT 88) and Thankamma v. Leelamma (2008 [2] KLT 500) have highlighted the necessity to apply the legislative mandate under Rule 64 of Order XXI of the code. It is not disputed that property was sold for Rs.83,000/- whereas evidence which courts below accepted would show that property is worth more than Rs.80,000/- per cent. That means sale of a portion of the property would have been sufficient to discharge the decree debt which C.R.P. No.454 of 2010 -: 4 :- aspect was not looked into by the executing court while accepting the draft proclamation of sale, fixing the upset price and selling the property on 08.10.2004. In the light of that, courts below are justified in holding that sale is liable to be set aside under Rule 90 Order XXI of the Code. No illegality or irregularity is committed by the courts below in arriving at that finding calling for interference by this Court. Revision Petition is without merit. It is dismissed. THOMAS P. JOSEPH, JUDGE. vsv