SREEDHARAN Vs. UNION BANK OF INDIA

JUDGEMENT

(1.) The judgment debtor in execution of a money decree is the revision petitioner. The revision is against the judgment of the Sub Court, Ernakulam in C.M.A.24/90 confirming the order of the executing court on an application under O.21 R.90 of the Code of Civil Procedure (hereinafter referred to as 'the Code'). The petitioner filed the said application seeking to set aside the sale conducted on 4-7-1984 on the ground of material irregularity and fraud in publishing and conducting the sale and on inadequate sale price. The first respondent is the decree holder and the second respondent is the auction purchaser. The Munsiff's Court after conducting inquiry into the aforesaid grounds dismissed the application. In appeal, while confirming the said order, the learned Subordinate Judge agreed with all findings of the Munsiff's Court.

(2.) The main question to be decided in this revision is whether the application under R.90 of O.21 of the Code on the ground of inadequate sale value is barred in view of the provisions contained in sub-rule (3) thereof. R.90 of O.21 reads thus:

(3.) The persons who are entitled to apply under sub-rule (1) to set aside the sale are (i) decree holder, (ii) purchaser, (iii) any person entitled to share in a rateable . distribution of assets, and (iv) any person whose interests are affected by the sale. This provision can be invoked only in a case where any immovable property has been sold in execution of a decree. Mere absence of attachment or defect thereof by itself is not a ground for seeking to set aside the sale in view of the Explanation to the rule. The mode of publishing the sale proclamation is prescribed in R.67. R.68 deals with time for sale. R.69 provides for adjournment or stoppage of sale. R.82 to 89 prescribe procedure for the conduct of sale on different situations. The material irregularity or fraud contemplated in R.90 relates to the procedure for publishing the sale proclamation and conducting the sale subsequent to the drawing up of the sale proclamation under R.66. The applicability of sub-rule (1) of R.90 is dependent on the condition prescribed in sub-rule (2) thereof. The condition's that the court must be satisfied that the applicant has sustained substantial injury by reason of the irregularity or fraud in publishing or conducting the sale. Under sub-rule (3) the application for setting aside the sale cannot be made on the ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. There is an absolute bar for entertaining such application under this sub-rule on the aforesaid grounds. That would indicate that the application to set aside the sale under R.90 will be maintainable only on the limited ground of material irregularity or fraud in publishing or conducting the sale.