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Jaison vs Jewel Rock Hire Purchasers on 6 July, 2009

Kerala High Court
Jaison vs Jewel Rock Hire Purchasers on 6 July, 2009
       

  

  

 
 
  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
                  - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                     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.

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