KLOROFARM Vs. UNION BANK OF INDIA

JUDGEMENT

(1.) This C.M.A. is filed against the order in E. A. No. 373 of 1989 in E. P. No. 344 of 1985 in O. S. No. 253 of 1981 on the file of the 3rd Additional Sub Court, Ernakulam. E. A. was filed by the petitioners for setting aside the sale under O.21 R.90 of the Code of Civil Procedure. After the disposal of the E. A., petitioners had preferred E. A. No. 1068 of 1991 to review the order. That was dismissed by order dated 11.2 1992. Against the dismissal of the review petition, a Civil Revision Petition was filed before this Court as C. R. P. No. 1907 of 1992. That Civil Revision was dismissed without prejudice to the petitioner raising the contentions in the C.M.A.

(2.) Petition to set aside the sale was filed on the following averments. The sale was conducted in gross violation of the mandatory provisions of law and is therefore vitiated by material irregularities. The Court was pleased to order proclaim and sale of the property on 5.1.1989. The case was posted to 23.2.1989. The decree holder prayed for time and the sale was adjourned to 16.3.1989. Again the decree holder prayed for time and the sale was adjourned to 21.3.1989. Unless the judgment debtor waives the right to sale under the same proclamation, no sale shall be conducted without a fresh proclamation. The sale was adjourned beyond 30 days without any waiver. The decree holder had played fraud by affixing R.66 notice to judgment debtor Nos. 3 to 5. There was no such affixture and the publication is illegal. There is no tom - tom conducted to this case. The sale proclamation was made fraudulently. It was notified that the sale would be conducted at 12 P.M. on 23.2.1989 at the Sub Court, Ernakulam. The sale was conducted by the Central Nazir at his office after 2 P.M. only. Hence the property could not fetch the actual market value. Petition to set aside the sale was filed on 20.5.1989. The sale was conducted on 23.2.1989. The judgment debtors filed objection. PWs. 1 to 6 were examined. The Executing Court, after considering the oral and documentary evidence, was satisfied that there was no irregularity or fraud in publishing or conducting the sale. Thus, the petition was dismissed. It is against this the present C.M.A. is filed.

(3.) Thereafter, the petitioner filed review petition. In Para.7, it is stated thus: "When the Court has fixed the reserve price at Rs. 75,000/- unless the Court otherwise direct, the reserve price shall be not less than the amount due". In Para.8 of the review petition, it is stated thus: "The publication of sale showing the upset price at Rs. 40,000/- is a material irregularity and amounts to fraud...."