SUSEELA Vs. NOUSHAD K

JUDGEMENT

(1.) This appeal is impelled against the order of the Sub Court, Ottappalam in E.A. No. 185 of 2017 in E.P. No.141 of 2014 in O.S. No.324 of 2011 refusing to set aside the sale of property conducted by it in execution of the decree in the suit. The suit was instituted by the respondent herein, initially seeking specific performance of an agreement dated 17.01.2011, entered into by him with the appellants herein, under which he agreed to buy certain extent of land owned by the former for an amount of Rs. 8,75,000/-. Under the terms of the said agreement, Rs. 3,00,000/- was paid as advance and pending the suit, the parties entered into a compromise as per which the respondent gave up his prayer for specific performance, and confined it for return of money paid by him as advance under the agreement of sale. The court below, therefore, decreed the suit on the basis of that compromise directing the appellants to pay to the respondents Rs. 3,00,000/- within a period of three months from the date of the decree and on failure to do so, to pay the said amount along with interest at the rate of 6% per annum from the date of claim, i.e., 31.08.2011, till date of realisation.

(2.) When the appellant refused to make payment as per the decree, the respondent levied execution and filed E.P. No.141 of 2014. Even though the appellants entered appearance in the Execution Petition and contest at every stage of the proceedings, the court below, on an application of the respondent, attached certain extent of property which was part of the compromise and proceeded to sell the same. Even though an attempt was made by the court below to have the property sold in such court auction, at least on two earlier occasions, the sale did not fructify for want of bidders. Finally, an application appears to have been made by the respondents seeking permission to bid in the auction and consequently on 21.05.2016 the court below brought the property to sale, on which day the respondent bid the property for an amount of Rs. 4,03,100/- against the actual price of Rs. 3,68,000/-. It is conceded by the learned counsel for the appellant that the sale was confirmed on 3.10.2017 and that a sale certificate was also issued.

(3.) The appellants thereafter filed E.A.No.185 of 2017, invoking their remedies under Order XXI Rule 90 of the Code of Civil Procedure to have the sale set aside on the ground of irregularity and fraud. The court below however dismissed the said application holding that no evidence was led by the appellants in strength of their assertion that the sale is vitiated for the reasons of irregularity or fraud and issued the impugned order. The appellants have assailed the order impugned in this appeal on several grounds, but primarily on the ground that the sale has been conducted for a woefully insufficient consideration.