C C SIVAPRASAD Vs. K SASIDHARAN

JUDGEMENT

(1.) Auction purchaser, second respondent in E.A. 290/ 92 and E.A. 147/02 in E.P. 64/88 in O.S. 20/87 on the file of Sub Court, Cherthala is the appellant. First respondent is the first judgment debtor and the petitioner in E.A. 147/02 and E.A. 290/02. Second respondent is the decree-holder Bank and the first respondent in the E.As. Second respondent decree-holder instituted O.S. 20/87 for realisation of Rs. 31635.25 with interest against first respondent who was the first defendant, and defendants 2 and 3. On SI-10-1987, a decree was granted in favour second respondent to realise Rs. 31,365.25 with 14 1/2% interest. Second respondent filed E.P. 64/88 for execution of the decree on 25-5-88. First respondent filed an objection disputing the executability of the decree. Overruling the objection, executing Court issued notice under Order XXI, Rule 66 of the Code of Civil Procedure (hereinafter referred to as the Code). First respondent filed an objection on 9-1-90 contending that he has no interest in the property sought to be sold. Executing Court overruled the objections as per order dated 21-2-90 and posted the E.P. for proclamation to 21-2-1990. On 6-4-1990, executing Court directed proclamation and sale of the property shown in the sale papers belonging to first respondent. When the case thus stood for sale, E.A. 296/90 was filed by one Sulabha under Order XXI, Rule 58 of the Code claiming that as per an agreement for sale, first respondent had transferred the property in her favour. As per order dated 23-11-1991, the claim petition was dismissed. The Court posted the E.P. for proclamation and sale to 21-1-92. As proclamation was not effected, executing Court posted the case for sale to 9-3-1992 on 21-1-1992. After proclamation the property was sold in public auction on 9-3-1992. It was purchased by the appellant for Rs. 25,000/-. When the E.P. stood posted for confirmation of sale, first respondent filed E.A. 290/02, an application under Order XXI, Rule 90 of the Code to set aside the sale alleging that there was material irregularity in publishing and conducting the sale. Both appellant auction purchaser and second respondent decree-holder filed objections to the petition. First respondent was examined as P.W. 1 and Exts. A1 to A7 and Exts. C1 report and C1 (a) plan were marked on his side. Ext. B1 was marked on the side of the appellant. As per order dated 6-4-1992, executing Court dismissed E.A.290/92. On 22-6-02, first respondent filed E.A. 147/02 under Order XLVII, Rule 1 of the Code, for an order to review the order dated 6-4-2002 in E.A. 290/ 92 alleging that there was apparent error and sufficient reasons to review the order. The decree-holder and auction purchaser opposed the petition by filing written objections. As per impugned order dated 30-6-2004 F.A. 147/02 was allowed holding that executing Court had not passed a judicial order in the matter of settlement of proclamation and as proclamation was not settled, the previous order dated 6-4-2002 is vitiated by error apparent on the face of the record and the sale is vitiated. Consequent to that order, the Court below allowed E.A. No. 290/92 which stood dismissed. The sale was set aside. E.P. was posted for further steps. Auction purchaser is challenging the impugned order of the executing Court in this appeal.

(2.) Appellant challenged the order contending that there was no apparent error or other sufficient reason to review the order in E.A. 290/92 and the order is unsustainable. It was contended that in fact there was proclamation for sale and all necessary procedures were duly complied with before the property was sold. It was further contended that the Court below should not have reviewed the order in the absence of any substantial injury sustained by first respondent and sale could not be set aside under Rule 90 of Order XXI and therefore the order in E.A. 147/02 and the order setting aside the sale are to be set aside.

(3.) We heard the learned Counsel Dr. V.N. Sankerjee appearing for the appellant and Advocate Mr. Dinesh R. Shenoy appearing for first respondent-judgment-debtor. Advocate Dr. Shankerjee vehemently argued that Court below omitted to take note of the limited powers under Rule 1 of Order 47 of the Code. The order passed on 6-4-2002 was after considering all the relevant facts and the scope of a petition for review is not similar to the appellate powers to interfere with an erroneous order and there was no apparent error on the face of the records or other sufficient reasons and for that sole reason the order of the Court below is illegal and unsustainable. It was pointed out that Sub-rule (2) of Rule 90 of Order XXI of the Code specifically provide that no sale shall be set aside on the ground of irregularity or fraud in the absence of substantial injury sustained by the judgment-debtor by reason of such irregularity or fraud and the Court below omitted to consider this aspect. Advocate Mr. Dinesh Shenoy argued that executing Court was satisfied that petition under Rule 90 was earlier dismissed without taking note of the fact that there was no settlement of proclamation and absence of settlement of proclamation goes to the very jurisdiction of the executing Court to order sale of the properties and under such circumstance, there was sufficient reason to review the previous order and the impugned order is perfectly legal and regular and warrants no interference. It was argued that property worth more than a lakh of rupees was sold for a paltry sum of Rs. 25,000/-and first respondent is prepared to compensate the auction purchaser by paying interest for the amount he had deposited in the Court and in such circumstance, in the interest of justice, there is no reason to interfere with the order and the appeal is only to be dismissed.