NABEESA UMMA Vs. KAYYA UMMA

JUDGEMENT

(1.) Revision petitioner is the judgment debtor in O. S.699 of 1983 of the Principal Munsiff's Court, Ernakulam. The respondent decree holder) filed E. P. 516 of 1987 for realisation of the decree amount. The properties were sold in execution. Revision petitioner filed E. A. 959 of 1989 under O.21 R.90 CPC. to set aside the sale. The Execution Application was dismissed by the executing Court on the ground of limitation.

(2.) Revision petitioner contended interalia that the sale was conducted in violation of O.21 R.69(2) of the CPC. and therefore on that sole score the executing Court ought to have allowed the Execution Application. Learned counsel for the respondent pointed out that there is no material before the Court to substantiate the contention of the revision petitioner that the sale it liable to be set aside under O.21 R.90 CPC. Counsel submitted that even if there was any violation of Older 21 R.69(2) it amounts to a mere irregularity and in the absence of proof of substantial injury the execution application cannot be allowed.

(3.) Under O.21 R.90 it is open to any person, whose interests are affected by the sale, to make application before the executing Court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it. As the revision petitioner has filed the execution application under O.21 R.90 it is for her to establish that there was material irregularity or fraud in publishing or conducting the sate and by reason thereof she had sustained substantial injury. A reading of O.21 R.90 would make it clear that it is incumbent upon her to establish not only material irregularity or fraud in publishing or conducting the sale but also that he has sustained substantial injury. In other words, mere irregularity or fraud will not entitle the Court to set aside a sale, if there is no proof of substantial injury caused thereby. Material irregularities would not by itself invalidate a sale. It must be established that the irregularities committed in the conduct of the sale have the effect of avoiding the sale. O.21 R.90(2) provides that no sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the feed proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity on fraud. Thus, it is incumbent upon the revision petitioner to prove that there was material irregularity or fraud in publishing or conducting the sale and consequently she had sustained substantial injury.