IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 46 of 2009()
1. SHAJAHAN, S/O.THEKKETHIL MUHAMMED,
... Petitioner
2. PATHUMMA, W/O.THEKKETHIL MUHAMMED
Vs
1. SECRETARY, PERINTHALMANNA SERVICE CO.OP.
... Respondent
2. BALAKRISHNAN, S/O.KALAPARA UNNIKUNHAN
For Petitioner :SRI.P.PARAMESWARAN NAIR
For Respondent :SRI.A.BALAGOPALAN
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :30/11/2009
O R D E R
K. M. JOSEPH & JOSEPH FRANCIS JJ.,
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F. A. O. NO: 46 OF 2009
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Dated this the 30th Day of November, 2009.
JUDGMENT
Joseph Francis J.,
This appeal is filed by the petitioners/ judgment debtors in
E.A. No: 301 of 2008 in E.P. No: 201 of 2007 in A.R.C0 No: 192 of
2005 on the file of Sub Court, Manjeri. Respondents 1 and 2 herein
are the first respondent/ decree holder and second respondent /
auction purchaser in that E.A., which was filed under Order 21 Rule
90 of C.P.C. to set aside the sale conducted on 19.3.2008.
2. The facts of the case are briefly as follows:
The 1st respondent herein has obtained an award as per A.R.C.
No: 192/2005 for realisation of Rs.2,77,670/- with interest, against
the petitioners herein. The 1st respondent has filed an execution
petition as E.P. No : 201/2007 before the Sub Court Manjeri for
realisation of an amount of Rs.3,90,087/- being the decree amount
with interest and costs. In the Execution Petition, the 1st respondent
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has sought to realise the amount by sale of the properties scheduled
to the Execution Petition. The 2nd petitioner, who was the absolute
owner in possession of 15 cents of property in Sy. No:53/46 of
Keezhathur Village of Perinthalmanna Taluk and it was said
property which was mortgaged with the bank. In the execution
proceedings, the appellants were ex parte and the property
scheduled has been put to auction and the 2nd respondent has bid the
auction for an amount of Rs.4,00,100/-. The auction was conducted
on 19.3.2008 and it was confirmed on 26.5.2008. Since the
appellants were ex parte in the execution proceedings they were not
aware of the sale and subsequent confirmation thereof. However,
the appellants have came to know of the sale and its confirmation,
subsequently and immediately thereafter the appellants have filed an
application before the execution court for setting aside the sale.
3. In the application to set aside the sale, the appellants have
contended that the sale was bad in law and the same was vitiated by
material irregularity and improper valuation. It was contended that
the property would fetch an amount of Rs.30,000/- per cent and that
the building thereon would have a value of Rs.2,00,000/-. The
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appellants have contended that the sale was conducted in such a
fashion that the prospective bidders could not participate in the
auction and accordingly the best available price could not be
secured for the property. It was further contended that there are
prospective purchasers for the above property to purchase the same
for at least Rs.6.5 lakhs. The appellants have further stated that they
are ready and willing to deposit the amount covered by the decree
and to get the property re-conveyed in their name. It was also
pointed out that even the sale of a portion of the property would be
sufficient to clear the debt due to the bank. Under these
circumstances it was prayed that the sale held on 19.3.2008 and
confirmed in favour of the 2nd respondent herein may be set aside.
4. Respondents 1 and 2 filed separate counter stating that the
sale was conducted in accordance with the provisions of C.P.C.
The petitioner remained ex parte in spite of receipt of Rule 66
Notice. The petition is barred by limitation.
5. For the purpose of enquiry, PW1 and PW2 were examined.
The learned Sub Judge on considering the matter dismissed that
petition. Against that order, the petitioners/ judgment debtors filed
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this appeal.
6. We heard the learned counsel for the appellants and the
learned counsel for the respondents.
7. It is an admitted fact that the property having an extent of
15 cents comprised in Sy. No: 53/46 with a house, was sold in court
auction on 19.3.2008 and the second respondent purchased that
property for Rs.4,00,100/- and the sale was confirmed on 26.5.2008.
The petition to set aside the sale was filed on 29.5.2008.
8. In the decision reported in Boban v. Sajith Kumar and
another (A.I.R. 2004 Kerala 181), it was held that under Article
127 of the Limitation Act, application to set aside the sale in
execution of decree has to be filed within 60 days from the date of
sale. In the present case, the sale was conducted on 19.3.2008 and
the application to set aside the sale was filed only on 29.5.2008,
which is beyond 60 days from the date of sale and therefore that
petition cannot be entertained.
9. The main grievance of the appellants is that there was no
paper publication with regard to the sale of the property. As
observed by the learned Sub Judge, the provisions contained in
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C.P.C. do not mandate the publication in the newspapers with
regard to the sale.
10. Learned counsel for the appellants invited our attention to
the decision of this court reported in Thankamma v. Leelamma
(2008(2) KLT 500, in which it was held that the contention that a
portion of the property would fetch the decree amount even if not
raised before the proclamation of sale, can be taken up in the
proceedings under Order XXI Rule 90 C.P.C.
11. Learned counsel for the appellants invited our attention to
the decision of the Apex Court reported in Sri Ram Maurya v.
Kailash Nath and others (A.I.R. 2000 S.C. 3402), in which it was
held in the absence of the pleading that on account of material
irregularity in conducting the sale, the petitioners were put to
substantial injury, auction cannot be set aside.
12. In the decision of this court reported in C.C. Sivaprasad
v. K. Sasidharan (2006 (1) K.L.J. 841, it was held that
“the legal position is now well – settled. By
reason of any material irregularity either in
publishing or conducting the sale, a sale cannot be
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set aside unless the applicant establishes that by
reason of such irregularity, he sustained substantial
injury. Without showing that the irregularity
resulted in substantial injury, no sale could be set
aside on the ground of material irregularity. For the
irregularity, substantial injury cannot be assumed or
presumed.”
13. On perusing the lower court records, it is seen that Order
21 Rule 22 and Rule 66 notices were personally served on the
judgment debtors 1 and 2 but they remained exparte and they did not
raise any objection to the sale proclamation. In the affidavit filed in
support of the petition, the judgment debtors admitted that the
decree holder has complied with the provisions contained in Order
21 Rule 66 C.P.C in conducting the sale.
14. According to the appellants, the property would fetch
Rs.6,50,000/- and that PW2 was ready to purchase that property for
that amount. But when cross- examined, PW2 admits that he has no
document to show that he was having that amount with him to
purchase that property. Admittedly that property was mortgaged to
decree holder by judgment debtor no:2. PW1 admits that after the
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mortgage of the property, judgment debtor no:2 sold the property to
one Mr. Ramadas for a sale consideration of Rs.2,50,000/- as per
sale deed No: 1735 of 2004. The appellants have not produced any
document to show that the petition scheduled property would fetch
more than Rs.4,00,000/- Since the appellants have failed to show
that the impugned sale is vitiated by material irregularity or fraud in
publishing or conducting it and that the appellants have sustained
substantial injury, the learned Sub Judge is justified in dismissing
the petition to set aside the sale.
Accordingly this appeal is dismissed. The parties are directed
to suffer their respective costs in this appeal.
K. M. JOSEPH, JUDGE
M. L. JOSEPH FRANCIS, JUDGE.
dl/