BOBAN Vs. SAJITH KUMAR

JUDGEMENT

(1.) This appeal arises out of the order passed in E. A. No. 1145 of 1999 in E. P. No. 473 of 1998 in O. S. No. 761 of 1996 on the file of Sub Court, Thrissur.

(2.) Appellant herein was the petitioner in E. A. No. 1145 of 1999 which was filed under O.21 R.90 of the Code of Civil Procedure. He is the decree holder in E. P. No. 179 of 1998 before the Munsiff's Court, Vadakkancherry. Decree schedule properly was scheduled to be auctioned on 10.08.1999. Appellant however noticed that in order to defeat his interest, first respondent, who is the decree holder in O. S. No. 761 of 1986 had filed E. P. No. 473 of 1998 bringing the schedule property to auction. Properly was sold in auction in that case on 21.06.1999. Sale was got confirmed on 23.02.2000. Appellant therefore wanted to set aside the sale in E. P. No. 473 of 1998 and put the property in auction again so that he would be able to realise the amount. He also raised a contention that the bid amount be deposited and he may be allowed to realise the amount by rateable distribution. The court below found no basis in the petition and dismissed the same. Property was sold in auction for an amount of Rs. 1,00,124/- in E. P. No. 473 of 1998 and there is no justifiable reason to set aside the same. Further the court below held that the appellant has not complied with the conditions prescribed in S.73 of the Code for rateable distribution and dismissed the application. Aggrieved by the same this appeal has been preferred.

(3.) Counsel appearing for the appellant Sri. Dilip J. Akkara contended that the sale was vitiated by fraud and material irregularity and therefore liable to be set aside. Counsel submitted that appellant came to know about the sale of the property only when E. A. No. 179 of 1998 was filed by the first respondent in O. S. No. 1892 of 1996. In any view of the matter, sale proceeds are liable to be rateably distributed as required under S.73 of the Code.