IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 FAO.No. 61 of 2003() -------------------- AGAINST THE ORDER DATED 29/06/2002 IN EA.702/01 IN EP.84/99 IN OS.695/1995 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANT/DEFENDANT/JUGMT.DEBTOR/PETITIONER: ---------------------------------------------------------------- YOHANNAN, S/O. VARIKKASSERY OUSEPH, MUTHRATHIKARA DESOM, PARAPUKARA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.C.A.CHACKO RESPONDENTS: PLAINTIFFS/DECREE HOLDERS/RESPONDENTS: ----------------------------------------------------- 1. SHAJAN, S/O.KURUMBILAYIKARA POUL, KIZHEKKECHALAKUDY VILLAGE, MUKUNDAPURAM TALUK. 2. THOMAS, S/O. AMBAZHAVELIL VARGHESE, KIZHEKKECHALAKUDY VILLAGE, MUKUNDAPURAM TALUK. ADV. SRI.RENJITH THAMPAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO. 848/2003 IN F.A.O. 61/2003 // DISMISSED // 1.6.2009. SD/-, P.R. RAMAN, JUDGE. SD/-, P. BHAVADASAN, JUDGE. // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN & P. BHAVADASAN, JJ. = = = = = = = = = = = = = = = = = = = = F.A.O. 61 OF 2003 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 1ST DAY OF JUNE, 2009. J U D G M E N T Raman, J. This is an appeal against the order dated 29.6.2002 in E.A. 702/2001 in E.P. 84/1999 in O.S. 695/1995 on the file of the Principal Sub Court, Irinjalakuda. 2. The judgment debtor is the appellant. The property belonged to the judgment debtor having an extent of 60 cents was sold for realisation of the decree amount. The property was sold and purchased by the counsel appearing for the decree holder for an amount of Rs. 1,42,447/-. It is the case of the appellant that the property is sold for a meager amount and that there was no previous publication as required by law. On the date on which the application was eventually posted the appellant was not present and the court below dismissed the application recording the absence of the appellant and at the same holding that the contents of the application is not proved by any evidence. FAO 61/2003 :2: 3. The question as to whether the property has been sold for a meager amount has to be decided on merits. But whether there was proper publication is a fact to be gathered from the records and if it is found that there was any omission in publishing the notice, the court itself could have corrected the mistake and proceed to issue fresh notice after setting aside the sale, or if it is found that proper publication was there, the same could have been verified from the records and decide the issue. In the situation and the background as stated above, especially when the property itself was purchased by the counsel for the decree holder, we think the proper course is to set aside the order impugned and give an opportunity to the appellant to adduce evidence in this regard. However, the appellant could have chosen to file an application under Order XXI Rule 106 of the Code of Civil Procedure to set aside the order impugned. But at this distance of time, we do not think we should relegate the appellant to adopt such a course. In the result, the interest of justice demands that the appeal be allowed on terms. Accordingly, we allow this appeal and set side the order impugned in this appeal on condition that the appellant shall pay an amount of Rs. 5,000/- (Rupees five thousand) to the respondent through counsel FAO 61/2003 :3: within a period one month from today, failing which the appeal will stand dismissed. The parties shall appear before the court below on 1.7.2009. P.R. RAMAN, JUDGE. P. BHAVADASAN, JUDGE. KNC/-