C.K.AJITH Vs. JAYAPRAKASH

JUDGEMENT

(1.) This appeal arises from the order passed by the Court of the Subordinate Judge of Alappuzha on 25.3.2017 on E.A.No.102 of 2017 in E.P.No.93 of 2013 in O.S.No.129 of 2008. By the said order, the court below dismissed the application filed by the appellant who is the judgment debtor in O.S.No.129 of 2008, under Order XXI Rule 90 of the Code of Civil Procedure to set aside the sale held on 25.1.2017.

(2.) O.S.No.129 of 2008 is a suit instituted by the respondent for recovery of the advance sale consideration paid pursuant to and in terms of an agreement dated 27.7.2007. The suit was decreed on 4.4.2012. Since the judgment debtor did not satisfy the decree debt, the decree holder filed an execution petition, to realise the decree debt by the sale of 35 cents of land belonging to the judgment debtor. In that execution petition the said property was brought to sale, sold and purchased by the decree holder with the leave of the court, for Rs.37,54,445/-. The judgment debtor thereupon filed E.A.No.102 of 2017 on 20.3.2017, within the period of limitation stipulated for the purpose, to set aside the sale held on 25.1.2017. After considering the rival contentions, the court below dismissed the application.

(3.) When this appeal came up for consideration before us on 7.6.2017, we directed the appellant's counsel to serve a copy of the memorandum of appeal complete in all aspects on Sri C.A.Rajeev, learned counsel for the decree holder who had lodged a caveat. We also directed that the appeal be called on 12.6.2017. On 12.6.2017 we adjourned the appeal to 16.6.2017 with a direction to the learned counsel for the appellant to ascertain and submit whether the appellant is willing to deposit the decree debt as also 5% of the bid amount within one month from 12.6.2017. On 16.6.2017 when the appeal was taken up for consideration, learned counsel appearing for the appellant was not present. There was also no representation on his behalf. Learned counsel for the respondent was also not present on that day. Since learned counsel on both sides were not present, we adjourned the appeal to 23.6.2017. On 23.6.2017, though the learned counsel for the respondent decree holder was present, learned counsel for the appellant was not present. There was also no representation on his behalf. On that day learned counsel for the respondent submitted that the respondent decree holder has no objection in the sale being set aside in the event of the judgment debtor satisfying the decree debt and also reimbursing the expenses incurred in connection with the sale. In the light of the said submission, we adjourned the appeal to 27.6.2017, so as to enable the learned counsel for the appellant to appear and state whether the appellant is willing to discharge the decree debt and also reimburse the expenses incurred in connection with the sale.