KOLATHINGAL MARIYUMMA Vs. SOUTH MALABAR GRAMIN BANK

JUDGEMENT

(1.) Petitioner is the wife of the judgment debtor. First respondent is the decree holder. Second respondent is the auction purchaser. Judgment debtor was impleaded as 3rd respondent in this petition as per order in I.A.1334 of 2007. As per the decree in O.S.339 of 2002, first respondent is entitled to realise Rs.8780/- with interest at 6% and cost from the 3rd respondent. For realisation of the decree debt, first respondent filed E.P.273 of 2005. Third respondent judgment debtor was in Saudi Arabia during the period. In the execution petition, nine and one-fourth cents in resurvey No.508/11A of Perumanna Village was sold. Second respondent, purchased it for Rs.75,000/- which was the upset price fixed by the executing court. Sale was confirmed. As the judgment debtor was away in foreign country, no application under Rule 89 or Rule 90 of Order XXI of Code of Civil Procedure was filed. The wife of the judgment debtor filed this petition under Article 227 of Constitution of India for her husband the judgment debtor to set aside the sale and to reconvey the property to the judgment debtor contending that her husband was away in Saudi Arabia and due to the expiry of the visa he was not in a position to return to India or to approach the court and file this application the property was sold for a low price and there was no necessity to sell the whole property as by sale of a part of the property decree debt could have been satisfied and the sale was in violation of the provisions of Code of Civil Procedure and as a result miscarriage of justice was caused and so the sale is to be set aside.

(2.) Petition was opposed by second respondent contending that he is a bonafide purchaser for value and purchased the property for Rs.75,000/- and there is no reason to set aside the sale as claimed by the petitioner. It was also contended that wife of the judgment debtor has no locus standi to seek the remedy by filing the petition. First respondent/decree holder submitted that decree holder is only interested in realisation of the decree debt due.

(3.) Learned counsel appearing for petitioner submitted that judgment debtor is prepared to pay the entire amount due to second respondent auction purchaser, including the purchase money deposited, its interest and cost incurred and as the sale is even otherwise vitiated, the sale may be set aside. It was argued that as per the execution petition, the amount due to the decree holder was only Rs.13,420/- and there is no necessity to sell the entire property as by sale of a part of the property the decree debt could have been satisfied and sale was conducted in violation of the provisions of Rule 64 of Order XXI of Code of Civil Procedure and therefore sale is to be set aside.