IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 FAO.No. 34 of 2007() -------------------- AGAINST THE ORDER DATED / / IN EA 307/05 IN EP 77/04 IN OS.100/2002 of SUB COURT,NEYYATTINKARA .................... : APPELLANT/CR.PETITIONER/PLAINTIFF/DECREE HOLDER. ----------------------------------------------------------------- SHAJIKUMAR, S/O.KUNJU KRISHNA PANICKER, (ANUPAM, VAZHATHOOR, NEYYATTINKARA. BY ADV. SRI.R.ANILKUMAR RESPONDENTS: PETITIONER/DEFENDANTS 3 &4, JUDGMENT DEBTOR 3 & 4 -------------------------------------------------------------- 1. KRISHNAN, KRISHNA SADANAM, MANIYANKAL, ARUMANOOR, POOVAR, THIRUPURAM VILLAGE, PIN: 695525. 2. SUMATHY, W/O.KRISHNAN, KRISHNA SADANAM, MANIYANKAL, ARUMANOOR, POOVAR, THIRUPURAM VILLAGE. BY ADV. SRI.K.B.PRADEEP FOR R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: I.A.NOS.299/07 & 489/08 DISMISSED. 23/7/2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No.34 of 2007 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of July, 2008. JUDGMENT Ramachandran Nair, J. The appellant herein is the decree holder in O.S.No.100/2002 of the Sub Court, Neyyattinkara. The challenge is against the order passed in E.A.No.307/2005 in E.P.No.77/2004. 2. The court below by the impugned order, on the application of the judgment debtor, set aside the sale of the properties attached in the suit. 3. Heard learned counsel for the parties. Learned counsel for the appellant submitted that this is a case where there were no grounds to set aside the sale. The property was sold in public auction and as there was nobody to purchase the property, the decree holder purchased it for Rs.1,68,862/-. The main grounds taken are that there was another attachment in respect of the property which was not mentioned in the proclamation schedule and that the objections of the judgment debtor in fixing the upset price was not considered. It is submitted that both these objections have no merit. 4. Our attention was invited to Order XXI Rule 90(3) of the C.P.C. FAO 34/2007 -2- which says that “no application to set aside sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which proclamation of sale was drawn up.” 5. It is seen that the objection regarding the sale proclamation was not raised earlier by the judgment debtors. The proclamation was settled after due notice. That there was another attachment, was not seen raised before the proclamation was settled. Therefore, there was actually no merit on the grounds raised. There was no material irregularity as far as the conduct of sale is concerned. In fact, the court below has found that non- mentioning of the other attachment in the proclamation schedule cannot be said to be a material irregularity causing substantial injury to the judgment debtor. The sale was set aside only on the ground that the upset price and the approximate price mentioned by the judgment debtors were not mentioned in the proclamation schedule. In the light of the clear provisions contained in Order XXI Rule 90(3) of the C.P.C., these grounds ought not have been considered for setting aside the sale. 6. Therefore, on that ground, the order cannot be sustained and the appeal is allowed setting aside the impugned order. In the circumstances of the case, we give a further opportunity to the judgment debtors to avoid the sale and if they deposit half of the decree FAO 34/2007 -3- amount within six weeks from today, the sale will stand set aside. If the amount is not deposited as directed above, the court below can proceed for confirmation of the sale. Subject to the above directions, the appeal is allowed. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/