IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 FAO.No. 50 of 2006() -------------------- AGAINST THE ORDER DATED 14/02/2006 IN EA.1205/01 IN EP.208/86 IN OS.248/1981 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANTS/PETITIONERS -------------- 1. SHABU MADHAVAN, S/O.MADHAVAN, AGED 33 YEARS, RESIDING AT KOTTEKUZHIYIL HOUSE, CHOOLOOR AMSOM, SAKETHAM DESOM OF KOZHIKODE TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, SHAJU MADHAVAN. 2. K.SHAJU MADHAVAN, S/O.MADHAVAN, AGED 30 YEARS, RESIDING AT KOTTE- KUZHIYIL HOUSE, CHOOLOOR AMSOM, SAKETHAM DESOM OF KOZHIKODE TALUK. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): DECREE HOLDER,AUCTION PURCHASER,JUDGEMENT DEBTOR -------------------- 1. STATE BANK OF TRAVANCORE, REP. BY ITS MANAGER, PALAYAM BRANCH, KOZHIKODE. 2. M.RAMADASAN, S/O.RAMUTTY, AGED 75 YEARS, RESIDING AT MANNODIYIL HOUSE, VENGERI AMSOM DESOM OF KOZHIKODE TALUK. 3. K.VELAYUDHAN, S/O.KOTTEKUZHIYIL THAMU, AGED 65 YEARS, RESIDING AT KOTTEKUZHIYIL HOUSE, CHOOLOOR AMSOM, SAKETHAM DESOM OF KOZHIKODE TALUK. 4. K.MADHAVAN, S/O.KOTTEKUZHIYIL THAMU, AGED 63 YEARS, RESIDING AT KOTTEKUZHIYIL HOUSE, CHOOLOOR AMSOM, SAKETHAM DESOM OF KOZHIKODE TALUK. FAO.50/2006 : 2 : 5. KARTHIAYANI, D/O.KOTTEKUZHIYIL THAMU, AGED 68 YEARS, RESIDING AT KOTTEKUZHIYIL HOUSE, CHOOLOOR AMSOM, SAKETHAM DESOM OF KOZHIKODE TALUK. 6. JANU, D/O.KOTTEKUZHIYIL THAMU, AGED 66 YEARS, RESIDING AT KOTTEKUZHIYIL HOUSE, CHOOLOOR AMSOM, SAKETHAM DESOM OF KOZHIKODE TALUK. 7. DEVAYANI, D/O.KOTTEKUZHIYIL THAMU, AGED 66 YEARS, RESIDING AT KOTTEKUZHIYIL HOUSE, CHOOLOOR AMSOM, SAKETHAM DESOM OF KOZHIKODE TALUK. BY ADV. SRI.K.MOHANA KANNAN FOR R3 TO 7 SMT.PRAVITHA A.R FOR R3 TO R7 SRI.RAJESH VIJAYAN FOR R2 SRI.SATHISH NINAN FOR R1 SRI.SANTHOSH MATHEW FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- F.A.O. No.50 of 2006 ------------------------------- Dated this the 10th June, 2009 J U D G M E N T Bhavadasan, J. Aggrieved by the order in E.A.No.1205 of 2001 in E.P.No.208 of 1986 in O.S.No.248 of 1981, on the file of I Additional Sub Court, Kozhikode, the petitioner before the court below come up in appeal. 2. In a suit for money by the Bank against respondents 3 and 4, a decree was passed. The property involved in the decree were brought to sale. The extent of the property was 2.08 acres. The property was sold and it was purchased by the second respondent. Claimants before the court below contended that being co-parceners, they have co- parcenary right equal to that of the judgment debtors. It is also pointed out that extent of property was 2.08 acres and that was sold for a paltry sum of Rs.20,000/=. It is further submitted that sale is vitiated by fraud and mala fides, and hence they prayed to FAO.No.50 of 2006 2 have the sale set aside under Order XXI Rule 90 of Code of Civil Procedure. 3. The auction purchaser resisted the petition. He pointed out that the sale was conducted in accordance with law and there is no ground to interfere with the sale conducted. The court below accepted the contention of the auction purchaser and dismissed the petition. It was held that the sale was proper and there was no ground to set aside the sale. 4. It is pointed out by the learned counsel for the appellant that the extent of property sold was 2.08 acres, and initially the upset value was Rs.1,98,000/=. It was subsequently reduced to Rs.90,000/=. Since there were no bidders at that point of time, the decree holder filed a petition to have the upset price fixed at Rs.20,000/=. That petition, according to the appellant, was dismissed by the court below and later the property was sold for Rs.20,000/=. It is also pointed out that there was no attempt on the part of the court to see whether entire property has to be sold for satisfaction of the decree debt of Rs.20,000/=. It is also submitted that a sale of small extent FAO.No.50 of 2006 3 of the property in which respondents 3 and 4 too have interest would have been sufficient to wipe off the decree amount. These aspects have not been considered by the court below. 5. Considering the above contentions, it needs to be noticed that for a decree debt nearing Rs.20,000/=, the entire property of 2.08 acres were brought to sale, that too, for a paltry consideration. There is nothing to show that the court had made any attempt to see whether a portion of the property alone needs to be sold. As rightly pointed out by the counsel, it was mandatory on the part of the court to consider whether entire property needs to be sold for satisfying the decree debt. Since that question has not been considered, the sale is vitiated. 6. It is true that there were attempts by several persons to have the sale set aside on several grounds. Probably some of the present contention might also have been urged by others. But the present contention is not seen considered in the present order and there is no whisper about it. It is also seen that there have been several litigations coming up even to the FAO.No.50 of 2006 4 High Court between the parties including the present appellants also. 7. The gross inadequacy of the price of sale cannot be ignored compared to decree debt due and extent of property sold. [See the decisions reported in Balakrishnan v. Malaiyandi Konar (AIR 2006 SC 1458); Kuruvila v. Corporation Bank (2008 (1) KLT 604) and also George v. Shirley Varkey (2009 (2) KLT 30)]. There was no attempt from the side of the execution court to determine if the whole property needs to be sold when the decree debt was for a small amount. In the above circumstances, the appeal is allowed. The impugned order is set aside. The matter is remanded to the court below for further proceedings and to dispose of the matter in accordance with law. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj.