PHILIP Vs. THOMAS

JUDGEMENT

(1.) This is an appeal filed by the decree holder purchaser against the order dated 10th January 1957, of the learned Subordinate Judge, Meenachil, setting aside the sale held on 21-2-1956, in execution of the decree in OS 192 of 1954.

(2.) The first defendant filed an application under O.21 R.90 CPC to set aside the sale on the ground of material irregularity and fraud in publishing and conducting the sale. The subject matter of the sale was one half of Oodukkur right in 7 acres 94 cents of land and a building standing thereon. It was alleged by the first defendant that the sale was conducted on 21-2-1955 without proper notice and that the decree holder himself purchased the property for Rs. 9458-0-0. Allegations of fraud and material irregularity in the conduct or publishing of the sale were also made by the first defendant. The first defendant also contended that as the publication of the intended sale was made in 'Kerala Bhooshanam' only on the date of the actual sale, namely 21-2-1956 the sale is illegal and void. The application was contested by the decree holder purchaser (the Appellant herein) on the ground that there was no material irregularity or fraud in the publishing or conduct of the sale and that in any event no substantial injury has been caused to the first defendant.

(3.) The first defendant appears to have taken out a commission to assess the value of the properties and the Commissioner has valued the properties both on the basis of yield, as also on the basis of the estimated market value. On the basis of yield, the properties were valued in the sum of Rs. 9879-12-4, and on the latter basis, they were valued at 11,289-10-8. The first defendant did not adduce any evidence to challenge the valuation of the Commissioner and, in the absence of any other evidence to the contrary, the valuation arrived at by the commissioner was rightly accepted by the learned Subordinate Judge. The learned Subordinate Judge has also held that the price fetched at the sale namely Rs. 9,458/- cannot be said to be by any means low or inadequate and that the first defendant cannot be said to have sustained any substantial injury.