MOHAMMED HARISS Vs. FATHIMA

JUDGEMENT

(1.) THE judgment-debtor in O. S. No. 203 of 1986 on the file of the Subordinate Judge's Court, Ernakulam, is the appellant in the C. M. A. That was a suit for money, which was, decreed on 3-1-1989, underwhich the decree-holder who is the respondent in the C. M. A. was entitled to realise a sum of Rs. 1,11,750/- together with interest from the judgment debtor. THE appellant is hereinafter referred to as the judgment-debtor and the respondent as the decree-holder. THE decree-holder filed E. P. No. 523 of 1989 for realisation of the decree by the sale of an item of property belonging to the judgment-debtor. THE property involved is a two storeyed building and two cents of property in which the building is situated, in Broadway, Ernakulam. That property was attached before judgment in the suit. In execution proceedings the decree-holder fixed the upset price of the property at Rs. 1 lakh. According to the judgment-debtor, the property is worth more than Rs. 10 lakhs. Among other objections the judgment-debtor raised such an objection also. THE execution court directed that the price estimated by the judgment- debtor may also be shown in the sale proclamation. THE decree-holder bid the property for a sum of Rs. 1. 5 lakhs. Subsequently the judgment-debtor filed execution application, E. A. No. 587 of 1990, under Order XXI R. 90 of the Code of Civil Procedure for setting aside the sale. THE execution court dismissed the application. THE judgment-debtor is challenging that order in C. M. A.

(2.) THE decree-holder filed E. A. No. 242 of 1991 before the executing court impleading the judgment-debtor as well as the appellants in e. F. A. No. 10 of 1992 praying for delivery of property. THE appellants in e. F. A. No. 10 of 1992 are hereinafter referred to as the tenants. THE tenants filed objection claiming that they are bona fide tenants of the building before the date of attachment. THEy also raised various other contentions about the validity of the attachment. However the execution court rejected those objections and ordered delivery. THE tenants have filed E. F. A. No. 10 of 1992 against the said order.

(3.) ACCORDING to the judgment-debtor and the tenants the sale was not conducted properly. The sale was vitiated by material irregularity in publishing and conducting it. Thereby the judgment-debtor sustained substantial injury. The property sold is situated in a commercially important locality in Ernakulam town and even at the modest estimate it will fetch more than Rs. 10 lakhs. For want of proper publication prospective bidders could not take part in the auction at the time of sale. The decree holder alone was present. As there was no other bidders the properties were sold for Rs. 1. 5 lakhs which is a very low price.