P BAHULEYAN Vs. MOOSSA E P

JUDGEMENT

(1.) The judgment-debtor, whose application for setting aside the Court auction sale under Rule 90 of Order XXI was dismissed by the Executing Court, challenges the order in this appeal. The suit was filed by the first respondent for amounts due to him as per an equitable mortgage created by the appellant/petitioner. The suit was compromised and a compromise petition was filed by the parties. The trial Court passed a decree in terms of the compromise.

(2.) In execution of the compromise decree, E.P. No. 91 of 2002 was filed by the decree holder for sale of the immovable property belonging to the judgment-debtor. It would appear that there was attachment of the property, though it was not necessary since the suit was on mortgage. The Executing Court passed an order to sell the immovable property for realisation of the decree debt. A proclamation was issued fixing the date of sale as 7-1-2003. On 7-1-2003, the judgment-debtor paid a sum of Rs. 25.000/- towards the decree debt. Though he prayed for adjournment of the sale, the Executing Court did not grant that prayer. As per the order in E.A. No. 9 of 2003 dated 7-1-2003, the decree holder was allowed to participate in the auction. It would appear that the sale was adjourned to 17-2-2003. On that day, auction was held and the decree-holder bid at the auction for a sum of Rs. 4,00,100/-.

(3.) E.A. No. 578 of 2003 was filed by the judgment-debtor under Rule 90 of Order XXI to set aside the sale. He filed E.A. No. 580 of 2003 for appointing a commissioner to value the property. According to the judgment-debtor, the property is worth Rs. 22 lakhs. The Executing Court dismissed the application for the issue of a commission on 20-8-2003 and on that date itself dismissed E.A. No. 578 of 2003 filed by the judgment-debtor to set aside the sale. The Executing Court confirmed the sale on 25-8-2003.