KANNAN Vs. VIJAYAN

JUDGEMENT

(1.) The judgment debtor in E.P. 272/98 in O.S. No. 48/98 on the file of the Sub Court, Trichur is challenging the dismissal of this petition to set aside the sale filed under Rule 90 of Order XXI of the Code of Civil Procedure, hereinafter referred to as the Code) as per order in E.A. 654/01 dated 11-12-2002. Appellant filed the petition to set aside the Sale contending that the property was sold for Rs. 5,01,000/- on 4-9-2001 and purchased by the decree holder and the sale is vitiated by material irregularities and fraud in publishing and conducting the sale and sale is liable to be set aside. It was contended that appellant had only 1/2 right in a plot of land measuring sixteen cents in R.S. No. 91/16 as per settlement deed No. 562/67 of S.R.O. Nenmara and the remaining extent belongs to his brother Sivakumar and the property was sold without disclosing this fact and it is a material irregularity. It was also contended that the property sold is worth Rs. 25 lakhs and the inspection by a Commissioner would disclose that the price quoted by the decree holder is blatant fraud and sale of a portion of the property would have been sufficient to satisfy the decree. It was also contended that there was no proper publication or publicity about the sale in the locality and there was no affixture of the notice in the Village Officer or any where in the locality and no publication was made to enable the public to know about the sale and it is another material irregularity. It was further contended that respondent bid the property without fixing a reserved price as provided under Rule 72A of Order XXI of the Code and it has to be taken that the decree holder bid the property for the full and final settlement of the entire decree. Appellant also contended that there has been no compliance of the provisions of Order XXI Rule 54 and there was no beating of the drum and there was no notice of the sale and therefore the sale is to be set aside under Rule 90 of Order XXI of the Code.

(2.) Respondent filed an objection denying all the allegations and contending that appellant deliberately evaded service of Rule 22 notice in the E.R and even the Commissioner has reported that the value of the property is only Rs. 9,50,000/- which is less than the value of the property shown in the sale proclamation and the brother of the appellant filed E.A. 412/01 claiming 1/2 share in the property and when the right of the claimant was disclosed respondent conceded the right and as directed by the court, sale paper was amended showing that appellant has got only 1/2 right in the property. According to first respondent appellant obtained permission of the court and bid in auction and Rule 72A of Order XXI is not applicable to the facts of the case and all the formalities were complied and appellant had challenged the order of the executing court earlier before the High Court and the order was confirmed and the total amount due under the decree exceed Rs. 17 lakhs and the attempt is only to drag on the proceedings and there is no fraud or material irregularity in the publication or conducting of the sale and therefore the petition is only to be dismissed.

(3.) The learned Sub Judge as per order dated 11-12-02 dismissed the petition holding that there is 11-12-02 dismissed the petition holding that there is no material irregularity or any other legal injury caused and therefore the sale cannot be set aside. Appellant is challenging that order in the appeal contending that court below should have stayed the proceedings till the disposal of the three petitions pending before the Sub Court, Palakkad to set aside the ex parte decree passed against the appellant. It was contended that the respondent has not amended the sale papers in accordance with the order of the court in E.A. 412/02 and it has resulted in injustice and the extent of the property sold is 27 3/4 cents and appellant has right over only 16 cents of land. It was also contended that the mandate of Rule 58 was not complied and there was no proper sale proclamation and there was no proper conducting of the sale and the sale conducted on 4-9-01 is invalid. It was also contended that though respondent was permitted to bid in auction, no reserve price was fixed and the upset price fixed for sale was Rs. 10 lakhs and decree holder should have bid the property for Rs. 10 lakhs and the sale for Rs. 5,01,000/- is illegal and it is a material irregularity. It was also contended that the non publication of the date of sale in the newspaper is a fraud on the court as well as the judgment debtor and it is a material irregularity and as a result irreparable injury was caused. It was also contended that the Amin did not affix the sale notice at the office the Collector of the District where the property is situate and persons could not participate for want of information of the auction sale and hence proper purchasers could not participate in the sale and it is a material irregularity and the sale is to be set aside.