IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 191 of 2007()
1. JAISON, S/O.KUTTICHAKKU PAUL,
... Petitioner
Vs
1. JEWEL ROCK HIRE PURCHASERS, THRISSUR.
... Respondent
For Petitioner :SRI.K.A.SREEJITH
For Respondent :SRI.P.SANTHOSH (PODUVAL)
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :06/07/2009
O R D E R
P.R. RAMAN & P. BHAVADASAN, JJ.
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F.A.O. No. 191 of 2007
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Dated this the 6th day of July, 2009.
JUDGMENT
Bhavadasan, J,
In a suit for money, the appellant, who is the
defendant before the court below suffered a decree. In
execution of the decree, his property was brought to sale. Sale
was conducted on 27.1.2005. The appellant thereafter filed
E.A. 2924 of 2005 under Order XXI Rule 90 of the Code of
Civil Procedure pointing out that the sale was vitiated due to
irregularity and illegality. It was pointed out that the sale was
conducted without complying with the necessary formalities
and procedures and infact a fraud has been played. Sale
proclamation was not properly drawn up and sale was
conducted without proper publication. It is also pointed out
that 6.975 cents of property and the building therein was sold
for a meager sum of Rs. 65,240/-. It is also contended that the
judgment debtor had taken objection to the price of the
FAO.191/2007. 2
property as shown by the decree holder and that has not been taken
into consideration.
2. The decree holder resisted the petition. He
contended that the sale is proper and there are no grounds to vitiate
the same.
3. On a consideration of the rival contentions, the court
below found that the petitioner before it was unable to establish
that there was any irregularity or illegality in the sale, and
accordingly dismissed the petition. The said order is assailed in
this appeal.
4. Learned counsel appearing for the appellant pointed
out that the court below was not justified in declining to set aside
the sale. According to him, the property was worth much more
than for what it was sold and that the sale is vitiated by fraud. He
also complains that the valuation suggested by him was not shown
in the proclamation for sale.
FAO.191/2007. 3
5. The court below has considered all the contentions
taken by the appellant before it and had come to the conclusion
that the petitioner was unable to show any real illegality or
irregularity in the sale conducted.
6. It is seen from the records that the appellant did not
appear after being served with notice in the execution petition.
Strictly speaking, therefore, he may not have much to say about the
sale. Of course, he has got a case that his property was sold for a
pittance. Even though the petitioner had alleged fraud in the court
below, details are not seen given.
7. Faced with the above situation, learned counsel for
the appellant pointed out that the appellant may be given some
time to pay the entire amount and save his property.
8. On a consideration of the various aspects, it is felt
that the request of the appellant needs to be considered. Appellant
agrees to pay the decree amount and whatever amount due from
him as a result of the sale in two equal instalments.
FAO.191/2007. 4
In the result, if the appellant pays the amount due from
him as per the decree in two equal instalments, first of which shall
be paid on or before 6.8.2009 and second instalment on or before
7.9.2009, the sale shall stand set aside. If the appellant fails to
comply with the above order, the sale conducted shall remain.
The appeal is disposed of as above.
P.R. Raman,
Judge
P. Bhavadasan,
Judge
sb.
