## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN**
## **&**
## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR**
**WEDNESDAY, THE 30[TH] DAY OF NOVEMBER 2022/9TH AGRAHAYANA, 1944 F.A.O. NO. 104 OF 2022**
**AGAINST THE ORDER DATED 30.07.2022 IN E.A.NO.1 OF 2022 IN E.P.NO.68 OF 2017 IN O.S.NO.97 OF 2014 ON THE FILE OF THE SUB COURT, KANNUR**
## **APPELLANT/PETITIONER IN THE E.A./RESPONDENT IN THE E.P.:**
K.K. JYOTHIDARSAN AGED 48 YEARS S/O. BHARATHAN, RESIDING AT CHAITHANYA, KOOTHUPARAMBA AMSOM, NARAVOOR DESOM, KOOTHUPARAMBA PO, THALASSERY TALUK, KANNUR DISTRICT - 670 643
BY ADV K.MOHANAKANNAN
## **RESPONDENTS/RESPONDENTS IN THE E.A./PETITIONER IN THE**
## **E.P. & AUCTION PURCHASER:**
1 VANNAMKANDY ANIL AGED 52 YEARS, S/O. ACHUTHAN, CHANDRA, KOLARI AMSOM, KALLUR DESOM, MATTANNUR PO, IRITTY TALUK, KANNUR DISTRICT - 670 702, REPRESENTED BY POWER OF ATTORNEY HOLDER, MUKUNDAN KOORMA, S/O. KUNHORAMAN, AGED 64 YEARS, RESIDING AT SHIVA KRIPA, KURUMBUKAL, P.O. MANGATTIDAM, KANNUR DISTRICT
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2 BALAN K.#, FATHER'S NAME AND AGE NOT KNOWN, RESIDING AT PRANAVAM, CHAMPAD PO, PANNIYOOR VILLAGE, KANNUR DISTRICT - 670 694.
BY ADVS. R1 BY ABDUL RAOOF PALLIPATH R2 BY M.K.SUMOD MUNDACHALIL KOTTIETH R2 BY K.R.AVINASH (KUNNATH) R2 BY VIDYA M.K. R2 BY THUSHARA.K
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 21.11.2022, THE COURT ON 30.11.2022 DELIVERED THE FOLLOWING:
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## **JUDGMENT**
## P.G.Ajithkumar, J.
This appeal, under Section 104 read with Order XLIII, Rule 1(j) of Code of Civil Procedure, 1908, is filed by the judgment debtor in E.P.No.68 of 2017 in O.S.No.97 of 2014 on the file of the Sub Court, Kannur. The appellant filed E.A.No.1 of 2022 under order XXI Rule 90 of the code seeking to set aside the sale of the immovable property held on 21.12.2021. That application was dismissed as per order dated 30.07.2022 and the said order is assailed in this appeal.
2. The appeal was admitted to file on 15.09.2022. Further proceedings in the execution petition was stayed as per the order in I.A.No.1 of 2022 initially for one month. The order of stay was subsequently extended.
3. Heard the learned counsel appearing for the appellant and also the learned counsel appearing for the respondents.
4. O.S.No.97 of 2014 was decreed allowing realisation of money. The 1[st] respondent-decree holder filed E.P.No.68 of 2017 and the property belonging to the appellant was brought on sale. Applications for setting aside the decree, which is an exparte
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one, and for condonation of delay filed by the appellant were dismissed and the appeal filed by him in that regard is pending consideration before the Additional District Judge-III, Thalassery. In the meantime, the property was sold in auction by the Sub Court, Kannur to which the decree was sent for execution.
5. The appellant contended that 25 cents of property was sold for grossly a lesser value. No copy of the draft schedule of proclamation for the sale was furnished on the appellant or his counsel. Without there having proper valuation, the property was put in auction. The auction purchaser, the 2nd respondent is a friend of the 1[st] respondent. Thus, the sale is vitiated by irregularity and fraud. By such sale the right of the appellant is prejudicially affected. Pointing out those reasons the appellant has filed E.A.No.1 of 2022 under Order XXI, Rule 90 of the Code, seeking to set aside the sale. Alleging that the Sub Court, Kannur, without properly appreciating the materials on record, had dismissed the petition, the appellant has filed the appeal.
6. The learned counsel appearing for the appellant would submit that the property is worth a minimum of Rs.1,50,000/per cent. But the Execution Court did not reckon that fact while
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finalising the proclamation schedule. No notice regarding the proclamation for sale of the property was given, nor a copy of the draft schedule of proclamation furnished to the appellant. That occasioned, a denial of opportunity to the appellant for raising his objections regarding sale of the property. Accordingly, the learned counsel would submit that the sale is liable to be set aside.
7. The learned counsel appearing for the 1[st] respondent, on the other hand, would submit that 25 cents of property from a plot of 76 cents was carved out by appointing a Commissioner and after proper valuation, the said property was put in auction. Without producing any material to show that the said property would fetch Rs.1,50,000/- per cent, objection regarding the valuation of the property was raised by the appellant. It is further contended that a copy of the draft sale proclamation was furnished on the counsel appearing for the appellant and that fact has been noted by the Execution Court, after verifying the records. In such circumstances, none of the contentions of the appellant is valid and sufficient to set aside the sale.
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## F.A.O.No.104 of 2022
8. As per Order XXI, Rule 90(3) of the Code, no application to set aside a sale should be entertained upon any ground, which the applicant could have taken on or before the date on which the proclamation for sale was drawn up. The appellant has no case that he was not participating in the proceedings in E.P.No.68 of 2017. As pointed out above, the Execution Court on the basis of the records, noticed that a copy of the draft sale proclamation was furnished on the counsel of the appellant. It is further noticed that thereafter the appellant got adjournments saying that he would be making payment of the decree debt. Though assured that he would be paying Rs.50,000/- immediately, that payment was also not effected. It was thereafter, the proclamation was effected and the sale was conducted.
## 9. In **Fathima Beevi v. Joly John [2022 (2) KLT 396]** , this Court held,-
“22. xx xx xx An auction sale always is in the nature of a distress sale. So, it is unlikely to get its exact market price in a court auction. Whether or not the sale was for a sufficient price, may not always be a decisive factor while deciding a petition under Rule 90 Order XXI of the Code. It was held by a three-Judge Bench of the Apex Court in
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## **Kayjay Industries (P) Ltd. v. Asnew Drums (P) Ltd.**
**and others [(1974) 2 SCC 213]** that inadequacy of price in an auction sale cannot demolish every court sale. Therefore, the fact that the property was sold for a comparatively low price alone cannot be a reason to set aside the sale. But the question is whether the court exercised its jurisdiction legally while settling the proclamation since the invariable rule is that the Court can sell such portion of the property which is sufficient to meet the claim in the execution petition alone.
29. Although, it has been vehemently contended that no notice as provided in Rule 66(2) of Order XXI of the Code was given to the appellant, the evidence on record shows otherwise. It may be true that a formal notice in form No.28 in Appendix E to the Code was served personally on the appellant. It is seen from the proceedings in the Execution Petition that the appellant had been appearing through her Counsel before the Court. Rule 7 of the Civil Rules of Practice, 1971 (Kerala) says that except where otherwise provided by the Code or these rules, or any law for the time being in force, any notice directed to be given to any party shall be in writing, and may be served by the party or his pleader or agent on the other party, or his pleader or agent personally, his signature being taken in acknowledgment of such service; or by registered post, prepaid for acknowledgment to the address for service of the party or agent. The appellant has no case that a copy of the draft proclamation schedule was not given to her Counsel appearing before the Execution Court. It is seen
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that the learned Counsel took time to file objection to the draft proclamation schedule. Having received a copy of the draft proclamation schedule and availed an opportunity to file objections, the appellant cannot be heard to contend that no notice as provided in Rule 66(2) of Order XXI of the Code was given to the appellant.”
10. As pointed out above, out of 76 cents of land, 25 cents was demarcated and sold. There is nothing on record to show that the land would fetch more value than valued by the Execution Court. In the light of the law laid down in the aforesaid decision, inadequacy of price alone is not a reason sufficient to set aside the sale. There is ample evidence to show that at every stage the appellant had notice of the execution proceedings. A copy of the draft sale proclamation was served on him in time. The contention now raised by the appellant that there occurred denial of opportunity cannot therefore be countenanced. There is nothing on record to show that there occurred any material irregularity or fraud in publishing or conducting the sale.
11. It is alleged that the auction purchaser is a friend of the 1[st] respondent-decree holder and for that reason the sale is vitiated. First of all, there is nothing on record to show such friendship. Secondly, it was a public auction in which anyone
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could participate. Unless it is shown that there was irregularity or fraud in publishing or conducting of sale, the friendship between the auction purchaser and decree holder, even if there is, is not a reason to set aside the sale. No material to show that the appellant sustained substantial injury on account of the sale in question has also been produced. In the said circumstances, we are of the view that the reasonings and findings of the Execution Court in the impugned order are based on sufficient materials. There is no legal or factual error in the order dismissing E.A.No.1 of 2022 in E.P.No.68 of 2017 in O.S.No.97 of 2014. Therefore, the appeal is dismissed.
Sd/-
## **ANIL K. NARENDRAN, JUDGE**
**Sd/P.G. AJITHKUMAR, JUDGE**
dkr
