IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 FAO.No. 254 of 2009() --------------------- AGAINST THE ORDER DATED 02/01/2008 IN EA.27/07 IN EP.11/02 IN AP.257/1999 OF DISTRICT COURT, ERNAKULAM ............... APPELLANTS / CLAIM PETITIONERS / JUDGEMENT DEBTORS : ------------------------------------------------------------------------------------------- 1. BENNY ANTONY, S/O ANTONY, MALIAKKAL HOUSE, RAMALOOR, KOTHAMANGALAM-686691 2. MINI BENNY, W/O. BENNY ANTONY, -DO- 3. JOY ANTONY, S/O. ANTONY, -DO- BY ADV. SRI.M.RAMESH CHANDER RESPONDENT / RESPONDENT / DECREE HOLDER : ------------------------------------------------------------------------- M/S. MAHARASHTRA APEX. CORPN. LTD. MANIPAL, REP. BY ITS PRINCIPAL OFFICER AND POWER OF ATTORNEY HOLDER SRI. P.K.RAMESH SHENOY, BRANCH MANAGER ERNAKULAM BRANCH, ERNAKULAM. BY ADV. SRI.S.R.DAYANANDA PRABHU THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 254 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of November, 2010. JUDGMENT Bhavadasan, J, Aggrieved by the order dated 2.1.2008 in E.A.27 of 2007 in E.P. 11 of 2002 in A.P. 257 of 1999 the judgment debtors have come up in appeal. Their claim petition to have sale set aside was dismissed by the court below. 2. The allegation of the judgment debtors was that the decree holder had purchased the property belonging to the third judgment debtor in court auction. The grievance voiced was that property worth Lakhs was sold for a paltry sum of Rs.20,000/-. The property was mortgaged to Catholic Syrian Bank and therefore the Bank had first charge over the property. It is also alleged that the decree holder did not obtain permission of the court as is required by the provisions of the law for bidding in court auction. On this ground, they sought to have the sale set aside. F.A.O.254/2009. 2 3. The decree holder resisted the petition pointing out that there is no illegality or irregularity in the sale conducted in execution of the award obtained in their favour. The sale proclamation was properly settled and the encumbrance was shown in the proclamation. The property was put to sale initially for Rs.75,000/- and there were no bidders. Therefore, the upset price had to be reduced and in the light of the fact that the property was mortgaged to a Bank, the upset price was fixed at Rs.20,000/-. The property was purchased by a third party in court auction and it is incorrect to say that the property was purchased by the decree holder. Pointing out that there is no error in the order of the court below, the decree holder prayed for a dismissal of this appeal. 4. The court on an evaluation of the materials before it came to the conclusion that there was no defect in the sale and accordingly dismissed the petition. F.A.O.254/2009. 3 5. Going by the records, none of the claims put forward by the judgment debtors are sustainable in law. Their claim that the property was purchased by the decree holder seems to be incorrect. It is clear from the records that it is purchased by a third party and therefore violation of Order XXI Rule 72 Sub-rule(3) of Code of Civil Procedure does not arise for consideration. Equally without substance is the claim that the property was sold for a low value. Initially, the upset price was fixed at Rs.75,000/- and no one came forward to purchase the property since the property was mortgaged to a Bank. It was thereafter that the upset price was reduced to Rs.25,000/- and a third party purchased the property in court auction. The judgment debtors have no case that they had indicated the price of the property, and that was not shown in the sale proclamation. The judgment debtors are unable to show any defect in the order of the court below. The court below was perfectly justified in dismissing the claim petition. F.A.O.254/2009. 4 This appeal is without merits and it is accordingly dismissed. There will be no order as to costs. Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.