IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 CRP.No. 1457 of 2004(I) ----------------------- (AGAINST THE ORDER IN CMA 193/03 OF THE IST ADDITIONAL DISTRICT COURT, THRISSUR IN EA 197/02 IN EP 208/01 IN OS 190/99 OF THE SUBCOURT, THRISSUR) REVN. PETITIONERS/APPELLANTS/PETITIONERS: ----------------------------------------------------- 1. SURENDRAN, S/O.LATE KIZHAKKE MUNDIYATH, KALYANIKKUTTY AMMA, AGED 40, OORAKAM DESOM, OORAKAM VILLAGE, THRISSUR TALUK. 2. SUNANDA, D/O. LATE KIZHAKKE MUNDIYATH KALYANIKKUTTY AMMA, AGED 39, OORAKAM DESOM, OORAKAM VILLAGE, THRISSUR TALUK. 3. PADMINI AMMA, D/O. LATE KIZHAKKE MUNDIYATH KALYANIKKUTTY AMMA, AGED 69, OORAKAM DESOM, OORAKAM VILLAGE, THRISSUR TALUK. (APPELLANTS 2 AND 3 ARE REPRESENTED BY THEIR POWER HOLDER, THE FIRST PETITIONER). BY ADV. SRI.K.C.CHARLES RESPONDENT/ RESPONDENT/ RESPONDENT : ------------------------------------------------- THE PARISH CHIT COMPANY LIMITED, CHERPU, CHERPU VILLAGE, THRISSUR TALUK. BY ADV. SRI.K.N.PADMAKUMAR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA 3919/04 IN CRP 1457/04 DISMISSED 8.1.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- C.R.P. NO. 1457 OF 2004 --------------------- Dated this the 8th day of January, 2008 ORDER This revision is preferred against the order of the 1st Additional District Court in CMA No.193/03. The said CMA was preferred against the order of the Subordinate Judge, Thrissur in EA 197/02 in EP 208/01 in OS 190/99. The said application was one for setting aside the sale under Order XXI Rule 90 CPC. The executing court found that there was no illegality or irregularity as contemplated under Order XXI Rule 90 and therefore dismissed the application. The appellate court also confirmed the said order. It is aggrieved bu that decision, the present revision is filed. 2. Heard both sides. Admittedly it is a mortgage decree. It is also not in dispute that the decree holder sought permission from the court to bid the property on sale, for which permission was granted. It cannot also be disputed that the court below did not fixed the reserve price as contemplated under Order XXI Rule 72A of the CPC. The court also did not consider whether a portion of the property alone needs to be sold in the light of the decree passed in the case. The courts below had approached the matter on the ground that there is no fraud or illegality proved and therefore refused to set aside the sale. 3. Learned counsel for the revision petitioner had relied upon C.R.P. NO.1457/04 2 the decision reported in Anto Nitto v. South Indian Bank Ltd. [AIR 1998 Kerala 219] and also the decision reported in P.Bahuleyan v. Moosa [2006 (4) ILR 118]. In the decision reported in Anto Nitto v. South Indian Bank Ltd. [AIR 1998 Kerala 219] a Division Bench of this court held that a judgment debtor for getting a sale set aside need not in such case satisfy the requirements of Order XXI Rule 90. In the very same decision, the court held that sale in execution of a mortgage decree, it is imperative to fix the reserve price and it cannot be waived by a judgment debtor. When the mandatory requirement contemplated under Order XXI Rule 72A is not followed, it goes into the root of the matter, which will affect the very conduct of the sale. In the latter decision, this court held that the court shall fix reserve price as regards the mortgagee by granting him leave to bid in auction and failure to do so is a material irregularity in conducting the sale. So, in the light of these two decisions, it has to be held that the sale conducted by the executing court is perfectly against the provisions of Order XXI Rule 72A and therefore it is vitiated and is liable to be set aside. Therefore, the order under challenge is set aside and the civil revision petition is allowed. Needless to say, the executing court is directed to restore the execution petition back to file and proceed to sell the property in accordance with the mandates contemplated under the CPC after considering the objections raised by the judgment debtor. There is a C.R.P. NO.1457/04 3 stipulation in the decree that portion of the property also can be sold for the purpose of realisation. Let an attempt be made to sell a reasonable portion of the property for realising the decree debt and if it is not enough, then proceed with the sale of the remaining property. The court below shall also consider whether it is impossible to sell the portion of the property and in such case, after recording the reasons in writing, decide to proceed with the sale of the entire property. I make it clear that the court has to necessarily comply with the statutory requirements under Order XXI Rule 72A of the CPC. Parties are directed to appear before the court below on 22.2.08. M.N.KRISHNAN, JUDGE vps C.R.P. NO.1457/04 4