Kerala High Court

Mohanan vs Prakashan on 6 February, 2024

Author: Anil K. Narendran

Bench: Anil K. Narendran

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

           THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN

                                   &

                THE HONOURABLE MR.JUSTICE G. GIRISH

     TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945

                         FAO NO.78 OF 2023

AGAINST THE ORDER DATED 22.01.2022 IN E.A.NO.112/2021 IN EP
NO.22/2019 IN O.S.NO.6 OF 2017 OF THE SUB COURT, NEYYATTINKARA
APPELLANT/PETITIONER/JUDGMENT DEBTOR/DEFENDANT:


             MOHANAN,
             AGED 50 YEARS
             S/O VELU, RESIDINGV AT CHINNANVILA COLONY VEEDU,
             KOTTUKAL, KOTTUKAL VILLAGE, NEYYATTINKARA TALUK,
             THIRUVANANTHAPURAM, PIN - 695501

             BY ADVS.
             SHASHANK DEVAN
             ADARSH KUMAR
             K.SANTHOSH KUMAR (KALIYANAM)
             K.M.ANEESH
             DILEEP CHANDRAN
RESPONDENT/COUNTER PETITIONER/DECREE HOLDER/PLAINTIFF:

             PRAKASHAN, S/O ACHUTHAN NAIR RESIDING AT LEKSHMI
             NIVAS, MULLOOR, VIZHINJAN VILLAGE
             THIRUVANANTHAPURAM DISTRICT, PIN - 695521

             BY ADVS.BIJU BALAKRISHNAN
             V.S.RAKHEE(K/945/1994)
             K.J.GISHA(K/1212/2004)
             AJMAL P.(K/1244/2018)
             YRISHIKA R.(K/001424/2023)


       THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION
ON   06.02.2024,   THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                        2
F.A.O.No.78 of 2023

                              JUDGMENT

G. Girish, J.

The judgment debtor in E.P.No.22 of 2019 in O.S.No.6 of 2017

on the files of the Sub Court, Neyyattinkara, has filed this appeal

against the order of dismissal of a petition filed by him as E.A.No.112

of 2021 under Order XXI Rule 90 of the Code of Civil Procedure, to

set aside the sale of the proclamation schedule property, conducted

on 16.09.2021.

2. In execution of the decree in O.S.No.6 of 2017, 4 cents

and 543Sq. links of land comprised in Kottukal Village of

Neyyattinkara Taluk, belonging to the appellant/judgment debtor,

was sold in court auction conducted on 16.09.2021, for an amount

of Rs.20,36,000/- to the decree holder/respondent, who had

obtained permission from the executing court, to participate in the

sale. According to the appellant, the above property would have

fetched a price of more than Rs.75,00,000/-, and that the under-

valuation of the said property, would amount to fraud and material

irregularity in the conduct of the sale.

3. It is also alleged by the appellant that the application filed

by the respondent/decree holder for the sale of the proclamation

schedule property, was not in conformity with Form No.56 of the Civil

Rules of Practice. According to the appellant, the court below

mechanically conducted the sale, without applying its mind, as to

whether a better price could have been obtained for that property.

For the above, and analogous reasons, the appellant/judgment

debtor had filed E.A.No.112 of 2021, for setting aside the sale, on

the ground of fraud and material irregularity.

4. The respondent/decree holder objected the application,

stating that the sale was conducted, after complying with all the

formalities. He also made the offer before the executing court that,

if the appellant/judgment debtor was ready to deposit the decree

amount, the property purchased by him in court auction, could be

re-conveyed to the appellant/judgment debtor.

5. The court below, after an evaluation of the relevant

records and hearing both sides, dismissed the application filed by

the judgment debtor/appellant, by holding that there was no reason

to set aside the sale.

6. Aggrieved by the above dismissal of E.A.No.112 of 2021

in E.P.No.22 of 2019 in O.S.No.6 of 2017 of the Sub Court,

Neyyattinkara, the petitioner has filed this appeal.

7. Heard the learned counsel for the appellant and the

learned counsel for the respondent.

8. The point to be decided is whether the order of dismissal

of E.A.No.112 of 2021 in E.P.No.22 of 2019 in O.S.No.6 of 2017 by

the Sub Court, Neyyattinkara on 22.01.2022, is liable to be set aside.

9. Though it is contended by the appellant that the

proclamation schedule property was sold in court auction at a throw

away price, and that the said property would have fetched more than

Rs.75,00,000/-, there is absolutely no evidence adduced from his

part to show that the property sold in auction would have fetched a

value exceeding the purchase price of Rs.20,36,000/-. So also, the

appellant failed to bring on record anything to show that there was

fraud or material irregularity of any sort, which had vitiated the sale.

10. As per Order XXI Rule 90 of the Code, where an

immovable property has been sold in execution of a decree, any

person, who is aggrieved of such sale, may apply to the court to set

aside the sale on the ground of a material irregularity or fraud in

publishing or conducting of the sale. Sub-rule (2) insists that such a

sale shall not be set aside even on proving irregularity or fraud in

publishing or conducting the sale unless the court is satisfied that

the applicant has sustained substantial injury by reason of such

irregularity or fraud. Sub-rule (3) provides that no application to set

aside a sale under this rule shall be entertained upon any ground

which the applicant could have taken on or before the date on which

the proclamation of sale was drawn up.

11. As far as the present case is concerned, the

appellant/judgment debtor has not succeeded in establishing that

there was any material irregularity or fraud in publishing or

conducting the sale. It is also seen that the judgment

debtor/appellant did not raise any such objection about the low

valuation of the property at the time of settlement of proclamation.

Nor could the judgment debtor/appellant establish that he had

sustained substantial injury as a result of the sale of the property.

In this context, it is worth to note that the respondent/decree holder

had even made an offer before the executing court to re-convey the

property to the appellant/judgment debtor, if he was ready to pay

the decree amount due to the decree holder. Thus, it has to be stated

that the appellant/judgment debtor could not bring out any

sustainable grounds to set aside the court sale of the property

conducted in this case. It has been held by a Division Bench of this

Court in Malathiamma v. Balamaniamma [2022 KHC 709:

2022:KER:11084], wherein one among us, (Anil K. Narendran, J.),

was a party, that when no evidence is produced to show that

property sold in auction would have fetched more value, no

interference is called for. Paragraph Nos.9 and 10 of the said decision

read as follows :

"9.The appellant would contend that in spite of her contention that the property would fetch more value and pointed out that the nearby properties attracted much more value, the Execution Court proceeded to put the entire area of 21 cents in auction. By that itself, it is contended, the sale

is vitiated. It is true that the provisions of Rule 64 of Order XXI of the Code obligates the court conducting a sale to ensure that the property sufficient to satisfy the decree alone is sold, in execution of a decree. Therefore, if sale of the entire property was not required to satisfy the claim under the decree, the same definitely would get vitiated. But in this case, the appellant did not produce any evidence to show that the property sold in auction would have fetched more value.

10. As regards the mode of publication of the proclamation and sale, no specific irregularity has been pointed out. The appellant thus has raised only vague contentions and the allegations that there occurred fraud and irregularity in publishing and conducting of the sale. Moreover, the appellant did not venture to adduce evidence to show that by sale of the property she sustained injury, much less than substantial injury. In these said circumstances, we are of the view that no ground for setting aside the sale of the property belonging to the appellant in execution of decree in O.S.No.999 of 2007 has been established. Therefore, the order dismissing E.A.No.805 of 2019 in E.P.No.157 of 2014 in O.S.No.999 of 2007 dated 12.03.2020 by the Execution Court cannot be said to be incorrect or illegal. The appeal therefore fails and the same is dismissed. No costs."

12. In the present case also, the appellant/judgment debtor

did not adduce any evidence to show that the property sold would

have fetched a higher value than the purchase price paid in the

auction sale. Nor could the appellant/judgment debtor establish that

there were any specific irregularity in the publication of the

proclamation and sale. In the above circumstances, the order of

dismissal of E.A.No.112 of 2021 in E.P.No.22 of 2019 in O.S.No.6 of

2017 of the Sub Court, Neyyattinkara, cannot be said to be incorrect

or illegal.

The appeal therefore, fails and the same is accordingly

dismissed.

(sd/-)