THOMAS Vs. DEVASSY

JUDGEMENT

(1.) This C.R.P. is filed against the judgment in C.M. A. 10 of 1996 on the file of the Additional District Court, N. Paravur. The 3rd appellant in the C.M.A. has been impleaded as respondent No. 2 in this revision. The proceedings arise from E. A. 453 / 1992inE.P.455/1991 inO.S.256/1983 on the file of the Munsiffs Court, Paravur. That application was filed under 0.21 R.90 of C.P.C. to set aside the sale. The facts are as follows: The first respondent in the C.R.P., namely Devassy, obtained a decree against the first petitioner, who is the husband of the second petitioner and father of the 3rd petitioner and 2nd respondent. The decree holder put the decree into execution and purchased in Court sale 58 cents of property comprised in Survey No. 307/8B and 307 / 12B of Varapuzha Village. According to the petitioners, the sale was held fraudulently and without due publicity.

(2.) The allegations in the application are as follows: The first petitioner is not in a normal state of mind and is suffering from mental disability. On account of financial distress which he had to undergo, he has lost his capacity to take care of the situation that confront him. Hence, the second petitioner - the wife - has filed the present E.A. as next friend of the first petitioner. On 10.4.1985 the first respondent in this petition obtained a decree against the first petitioner for recovering an amount of Rs. 3025/- with 6% interest from the date of suit. Even though an appeal was filed against the decree, the appeal was dismissed on 25.3.1987. On4.8.1988, the decree holder filed E.P.509 / 1988 praying for personal execution against the first petitioner and also by attachment and sale of the aforementioned 5 8 cents of property. According to the proceedings, on 15.10.88 the executing Court passed orders for attaching the 58 cents. On 30.11.1988, the property was attached. The judgment debtor was declared ex parte. The sale proclamation was settled on 19.2.1991. On the basis of the sale proclamation, the property was sold on 27.6.1991 and it was purchased by the decree holder for an amount of Rs. 5134/-. The sale was confirmed and purchase certificate issued to the decree holder on 27.8.1991. The petitioners came to know of the sale only on 27.9.1992 and the said sale of the property was secretly manipulated and delivery of property was obtained by the first respondent on 12.8.1992. The petitioners contended that there was no proper attachment according to law. Further it was stated that the sale proclamation was not properly drawn up and published as required by law. The extent of property sold is 5 8 cents. In Varapuzha Village the property will fetch a minimum amount of Rs. 10,000/- per cent. The upset price shown was very low. The property was sold for a grossly inadequate price because of the low upset price shown and that situation was brought into existence by the decree holder fraudulently, deceitfully and with ulterior motive of knocking off the 58 cents for himself for the paltry amount of Rs. 5134/-. The property is worth Rs. 5,80,000/-. The sale of the property conducted after four months from the date of proclamation and that too without a fresh proclamation is illegal. It is further submitted that the application is based on the fraud of the decree holder and, therefore, the period of limitation will commence only from the date of knowledge, viz., 27.9.1992.

(3.) The first respondent filed objection to the above application. He contended that there was no fraud or material irregularity in publishing or conducting the sale. Petitioners 2 to 4 in the E.A. had no right over the property. The first petitioner is not suffering from any mental disability. He is a practising lawyer. The petition is barred by limitation. Notice and process in the execution petition were served on the petitioners. The price obtained is reasonable. The allegation that the property would fetch a minimum amount of Rs. 10,000/- per cent is not correct.