## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN**
**&**
**THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR**
**MONDAY, THE 12[TH] DAY OF JUNE 2023 / 22ND JYAISHTA, 1945 FAO NO. 56 OF 2023**
**IN THE MATTER OF ORDER DATED 10.04.2023 IN E.A NO.1005 OF**
**2019 IN E.P.NO.224 OF 2018 IN O.S.NO.87 of 2017 ON THE FILES OF IST ADDITIONAL SUB COURT,ERNAKULAM**
## **APPELLANT/PETITIONER/JUDGMENT DEBTOR/DEFENDANT:**
## **HARSHAPPAN**
**AGED 70 YEARS, S/O.KUNJAPPAN, AZHHIKKAKADAU, VYPIN P O, NOW RESIDING AT AZHIKKAL, 10/494A, HOMEO DISPENSARY ROAD, VISHNUPURAM, CHERANELLLOOR, KOCHI- 682034, PIN - 682034**
**BY ADV PETERLAL**
## **RESPONDENT/RESPONDENT/DECREE HOLDER/PLAINTIFF:**
## **SHYAMALA**
**AGED 53 YEARS, W/O.UNNI, ODIKKALPARAMBIL , THYKKAVU, CHERNELLOR, KOCHI-682034, PIN - 682034**
**BY ADVS. T.B.THANKAPPAN T.T.HARIKUMAR(K/397/2007) DIPIN DILEEP(K/000208/2018) A.GOPALAKRISHNAN (ALAPAT)(K/782/2014) MORELY STALIN JAMES(K/003579/2022)**
**THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 12.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **J U D G M E N T**
## P.G.Ajithkumar, J.
This is an appeal under Order XLIII Rule 1(j) of the Code of Civil Procedure, 1908. The appellant assails the order dated 10.04.2023 of the Sub Court, Ernakulam in E.A.No.1005 of 2019 in E.P.No.224 of 2018 in O.S. No.87 of 2017. That execution application was filed by the appellant seeking to set aside sale in E.P.No.224 of 2018. That application was dismissed.
2. Notice was directed to be served on the respondent by special messenger. Respondent entered appearance through her learned counsel.
3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.
4. Respondent filed O.S.No.87 of 2017 seeking a decree of realisation of money which she allegedly paid as advance sale consideration to the appellant. The sale consideration agreed to between the parties was Rs.28 lakhs.
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Agreement for sale was entered into on 03.12.2014. That suit was settled in mediation and a decree based on that compromise was passed on 14.02.2018. Decree was for realisation of Rs.13 lakhs along with interest. Stipulation regarding payment of interest was added as a default clause. Respondent filed E.P. No.224 of 2018 since the appellant did not make payment. Property was brought on sale and the respondent bid the property in public auction for a sale consideration of Rs.13 lakhs. The appellant filed I.A.No.1005 of 2019 under Order XXI Rule 90 of the Code seeking to set aside the sale. The execution court after hearing both sides held that all requirements under the provisions of Rule 64 to 68 of the Code were substantially complied with in publishing the proclamation and conducting the sale. The execution court further held that on account of the sale, no injury was caused to the appellant. Accordingly that application was dismissed.
5. The learned counsel appearing for the appellant would submit that none of the objections raised by the appellant in the matter of settlement of proclamation and
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conduct of sale were considered by the execution court and the property was sold for a totally inadequate price. The learned counsel would submit that not only that the proclamation drawn up by the execution court is defective but also that there was no proper publication of the proclamation. The sale proclamation was published in a daily ‘Pradeepam’ which has no circulation anywhere in the area where the property in question is situated. The respondent agreed to purchase the property in 2014 for an amount of Rs.28 lakhs. It is that property the respondent had bid for a price of Rs.13 lakhs in 2019. That itself is enough to prove that the sale was for a much lower price. It is further submitted that although all such contentions were raised, the execution court did not consider those matters and dismissed I.A.No.1005 of 2019 without stating any reason.
6. The learned counsel appearing for the respondent on the other hand would submit that the proclamation was settled after hearing both sides and taking into account the fair value of the property. It is true that the respondent alone
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was there to bid the property, but when the upset price was fixed by the court in an appropriate manner, purchase of the property by the respondent in the absence of any competitor offering more price, no irregularity or illegality can be attributed to the sale. Delivery of the property is already affected on 06.06.2023 and in such circumstances, there is absolutely no reason to interfere with the order of the execution court in I.A.No.1005 of 2019.
7. The mode of making proclamation of the sale is described in Rule 67 of Order XXI of the Code. The procedure prescribed in Rule 54 shall be followed in the matter of making proclamation for sale. Here the sale proclamation was published in a newspaper, obviously, on the basis of a direction by the court under sub-rule 2 of Rule 67 of Order XXI. Indisputably, the publication was made in ‘Pradeepam' daily. The learned counsel appearing for the appellant would point out that, such a daily has no circulation anywhere in the local areas of Ernakulam. Certainly, publication of the proclamation in such a news paper does not serve any
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purpose which it intended. Proclamation is published for giving notice to the persons who may have interest in purchasing the property in the public auction. Unless the proclamation is published in a daily having sufficient circulation in the area where the property is situated, persons having interest in purchasing property could not get notice. It is true that the proclamation need not always be published in a newspaper. But when publication of sale proclamation in a news paper is ordered to be made, the requirement of a due publication cannot be watered down.
8. In **Muhammed Shameer v. T.P Abdul Majeed, [2022(2) KHC 642]** , this Court in the context of publication of summons in a suit as provided in Order V Rule 20 of the Code held that every Court making such replications shall ensure that a news paper in which advertisement is given shall have sufficient circulation in the locality where the defendant last known to have resided. It was also held that publication of the summons in a newspaper having limited circulation or publishes in the evening only, shall not satisfy
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the requirements of the law. In that view of the matter, publication of the sale proclamation in the daily ‘Pradeepam’ does not satisfy the requirement of sub-rule 2 of Rule 67 Order XXI of the Code.
9. It is beyond dispute that the respondent agreed to purchase the property which was sold in execution for an amount of Rs.28 lakhs. The agreement was in the year 2014. No circumstance was brought on record to show that there occured diminition of value of the said property in course of time. Ordinarily value of an immovable property is used to be increased by passage of time and there is no reason to take a different view in respect of the property in dispute. Without considering any such aspect, or placing reliance on any reliable material, the execution court has fixed the upset price as Rs.13 lakhs.
10. The Apex Court in **Desh Bandhu Guptha v. N.L.Anand & Rajinder Singh [(1994) 1 SCC 131]** sounded a note of caution that while fixing the estimated value of the property to be sold, the Court must not accept merely the
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_ipse dixit_ of one side. It is certainly not necessary for it to state its own estimate. Rule 66(2)(e) requires the court to state only the nature of the property so that the purchaser should be left to judge the value for himself. But, the essential facts which have a bearing on the very material question of value of the property and which could assist the purchaser in forming his own opinion must be stated, i.e., the value of the property, that is, after all, the whole object of Order XXI, Rule 66(2)(e) of the Code. The court should normally state the valuation given by both the decree holder as well as the judgment debtor where they both have valued the property, and it does not appear fantastic.
11. Therefore it is require to state the estimated value of the property along with the valuation made by both decreeholder and the judgment-debtor. More importantly, the decree-holder himself agreed to purchase the property in 2014 for an amount of Rs.28 lakhs, but its estimated value was fixed as Rs.13 lakhs in 2019. It appears curious. That itself is enough to show that the Court did not apply its mind
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while settling the proclamation. That resulted in selling the property for an amount of Rs.13 lakhs. This is a glaring instance of wrong exercise of jurisdiction resulting in failure of justice. The sale has become void for that reason.
12. Order XXI Rule 90(3) of the Code, 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 of which the proclamation of sale was drawn up". The Apex Court in **Desh Bandhu Guptha (supra)** held that Order XXI Rule 90(3) of the Code is a special rule brought on statute by 1976 Amendment Act and it is like a "caveat emptor" that the judgment debtor be vigilant and watchful to vindicate pre-sale illegalities or material irregularities. He should not stand by to procrastinate the execution proceedings. If he does so, Rule 90(3) forewarns him that he pays a penalty for obduracy and contumacy. Equally it is a reminder that the court should be strict to comply with the procedural part under Rule 54(1A) before depriving the judgment debtor of the remedy under Order
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XXI, Rule 90 of the Code. Here is a case where the Court failed to discharge its duty by non complying with the mandatory provisions in Order XXI, Rule 66 of the Code and therefore the Rule 90(3) of Order XXI of the Code does not debar the appellant from challenging the sale.
13. From the records it can be seen that the execution court did not apply mind while fixing the approximate value of the property which was put on sale. When the decree debt at the time of settlement of proclamation was Rs.15,37,107/-, the execution court put the property on sale fixing the base price as Rs.13 lakhs. For that amount the decree holder bid the property also. By conducting such a sale, requirement of Rule 66 of Order XXI were clearly violated. Therefore the sale is shrouded by irregularity warranting interference under Rule 90 of Order XXI. No doubt, only if substantial injury is caused to the owner of the property by such a sale, an order under Rule 90 is possible. When the property is sold for a glaringly inadequate price, the sale certainly results substantial injury to the owner of the property. Therefore sale dated 25.11.2019
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is liable to be set aside. The fact that on the basis of the sale, delivery was effected is not a reason for desisting from invoking the provisions under Order XXI Rule 90 of the Code.
In such circumstances, this appeal is allowed. The impugned order in E.A. No.1005 of 2019 is set aside. That application stands allowed. The execution court shall restore E.P.No. 224 of 2018 in O.S.No.87 of 2017 on file and proceed with it in accordance with law.
Sd/-
## **ANIL K. NARENDRAN, JUDGE**
Sd/-
## **P.G. AJITHKUMAR, JUDGE**
PV
