Sajimon Y. v. Radhamani

# **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 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944** **F.A.O.NO. 101 OF 2020** **AGAINST THE ORDER DATED 09.09.2020 IN E.A.NO.1 OF 2020 IN E.P.NO.7 OF 2015 IN O.S.NO.112 OF 2012 OF SUB COURT,** ## **KOTTARAKKARA** ## **APPELLANT/PETITIONER/JUDGMENT DEBTOR:** **SAJIMON Y., AGED 48 YEARS, S/O. YOHANNA, SAJI BHAVAN, NELLIKUNNAM, AMBALAPPURAM, KOTTARAKKARA TALUK, KOLLAM-691 520.** **BY ADVS. SRI.R.SATISH KUMAR SRI.T.SANJAY** ## **RESPONDENT/DECREE HOLDER:** ## **RADHAMANI** **D/O BHARGAVI AMMA, KARAMEL VEEDU, KARIKKAMATTATHMURI, VETTIKKAVALA VILLAGE, KOTTARAKKARA TALUK, KOLLAM.** **BY ADVS. SRI.K.V.ANIL KUMAR SHRI.MOHANAN M.K.** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 17.08.2022, THE COURT ON 19.09.2022 DELIVERED THE FOLLOWING:** 2 F.A.O.No.101 of 2020 ## **JUDGMENT** ## Ajithkumar, J. This is an appeal filed under Order XLIII, Rule 1(j) of the Code of Civil Procedure, 1908. 2. 5.36 Ares of land comprised in re-survey No.468/3 of Kottarakkara Village was sold in auction in E.P.No.7 of 2015 in O.S.No.112 of 2012 by the Sub Court, Kottarakkara on 23.06.2020 to the respondent-decree holder for an amount of Rs. 27 lakhs. The petitioner-judgment debtor filed E.A.No.1 of 2020 seeking to set aside the sale. The respondent resisted the said application by filing an objection. The Execution Court, after considering the matter in detail, dismissed E.A.No.1 of 2020 holding that there was no fraud or irregularity in publishing the proclamation or conduct of sale, warranting to set aside the sale. It was further held that the appellant is trying to protract the execution of decree, which was passed as early as in 2014. 3. The appeal was admitted to file on 05.04.2020 and notice was directed to be served on the respondent. This 3 F.A.O.No.101 of 2020 Court, as per order dated 17.12.2020 refused to stay the order for delivery of the property, which was sold on 23.06.2020. However, the respondent was directed not to alienate the property, put anyone else in possession or carry out any structural alteration to the building. 4. Heard the learned counsel appearing for the appellant and also the learned counsel appearing for the respondent. 5. Grounds on which sale dated 23.06.2020 was assailed by the appellant, as mentioned in the impugned order are the following:- “(1) Proclamation was settled on 18.02.2020, however sale was conducted on 22.06.2020. (2) The date of proclamation schedule attached to sale notice is 12.04.2019 and it was seen filed on 01.06.2020. (3) The valuation of the property stated is Rs.15,00,000/-. However, as per the valuation report filed by an approved valuer, the market value of the property fetches Rs.38.25 lakhs. (4) If sale is conducted during the covid season, the 4 F.A.O.No.101 of 2020 property will not get an appreciable value. (5) The sale proceedings should have been postponed as there was spread of corona virus. (6) Sufficient opportunity was not given to the petitioner to establish that the property sold fetches more than Rs.38 lakhs.” 6. The learned counsel appearing for the appellant would submit that correction of the date is evident from Annexures A3 and A4, and that alone is enough to set aside the sale. Annexures A3 and A4 are copies of the schedule of the properties proposed to be sold. The said schedule is one attached to the form of proclamation, which is Form No.29 in Appendix E to the Code. The date of the proclamation is what is relevant. What is evident from Annexure A4 is just that the date at the bottom of the schedule of propriety was overwritten. The date is corrected as 01.06.2020. The appellant has no dispute that the sale was proclaimed by affixing the proclamation along with the schedule at the Village Office on 04.06.2020 and also at various places. The requirement of Rule 68 of Order XXI of the Code is that no 5 F.A.O.No.101 of 2020 sale shall be conducted until after the expiration of at least 15 days from the date on which a copy of the proclamation has been affixed in the court house, in the case of immovable property. The proclamation was effected on 04.06.2020 and the sale was on 23.06.2020. Since there is no violation of the stipulations in Rule 68 of Order XXI, alleged correction of date in the schedule of the property attached to the proclamation, does not have any relevance. The provisions of Rules 66, 67 and 68 of the Code in the matter of proclamation and also the time of sale have been duly complied with and therefore the contention of the appellant with reference to the correction of date is untenable. 7. Another contention raised by the appellant is that the upset price fixed was Rs.27 lakhs; whereas, the market . value of the property assessed by an expert is Rs.38,25,000/-, and therefore, the sale was vitiated. It is the settled law that when the sale is not in the execution of a mortgage decree, there is no need for fixing upset or reserve price. As such, there is no meaning in contending that the 6 F.A.O.No.101 of 2020 Execution Court went wrong in fixing the upset price as Rs.27 lakhs. Moreover, Annexure A2 produced by the appellant is a copy of the valuation by a private valuer. It was not seen obtained at the instance of the Execution Court. It is seen that the value of the land was fixed by the valuer simply on guesswork. When the fair value of the landed property was Rs.3,89,136/-, the valuer fixed the land value as Rs.33,12,500/-. Of course, the fair value fixed by the Department of Registration cannot be the sole criteria for assessing the market value of a land. Here, the fair value and market value fixed by the valuer have absolutely no nexus. Without there having any material, the valuer fixed the land value almost ten times the fair value of the land. Therefore, the value shown in Annexure A2 cannot be a reason to hold that the Execution Court went totally wrong in proceeding with the auction sale. 8. A three-Judge Bench of the Apex Court in **Kayjay Industries (P) Ltd. v. Asnew Drums (P) Ltd. and others** **[(1974) 2 SCC 213]** that inadequacy of price in an auction 7 F.A.O.No.101 of 2020 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 9. It is seen that from 11.03.2020, the matter was adjourned for several dates and ultimately on 18.05.2020, the auction was directed to be proclaimed and sale was ordered to be held on 22.06.2020. It was accordingly, the auction sale was proclaimed. On 22.5.2020 there was no sitting and hence the sale was conducted on 23.06.2020. One of the reasons pointed out as a vitiating factor is that the sale was proclaimed to be conducted on 22.06.2020, but the actual sale was held on 23.06.2020. It is seen that as per the proclamation published on 04.06.2020, the date proposed for sale was 22.06.2020; whereas the sale was adjourned to 23.06.2020, on which date sale had taken place. It may be noted that Rule 69 of Order XXI of the Code empowers the court to adjourn sale to a subsequent specified date and a fresh proclamation is required only if the sale is adjourned for a longer period than 30 days. As such postponement of sale 8 F.A.O.No.101 of 2020 from 22.06.2020 to 23.06.2020 is only as permitted by Rule 69 of the Code. Therefore, the contention of the appellant in that regard is also untenable. 10. It is a fact that the proceedings in the courts were affected to a certain extent by the spread of COVID-19. But there was no impediment to conduct the court proceedings. In the absence of anything to show that the restrictions or limitations on account of COVID-19 affected materially the auction sale, it is unfair to say that auction should not have been conducted. There is nothing on record to show that during the said period, normal court proceedings could not be conducted. It is seen that the proclamation was duly effected and a public auction was conducted. After obtaining permission under Rule 72 of Order XXI, of the Code, the respondent-decree holder had bid the property. No material is placed on record to substantiate that there occurred prejudice to the judgment debtor by said sale. 11. The learned counsel appearing for the appellant relying on **Pappu Ram Reddy v. Pappu Lakshmi Narayana** 9 F.A.O.No.101 of 2020 **Reddy and another [(2019) 16 SCC 346]** submitted that the proclamation was not published in newspaper and for that reason, also the sale is vitiated. Publication of proclamations in newspaper is not always mandatory. In the said case, sale was set aside by the Apex Court not merely for the reason of want of publication in the newspaper. The other reason was that the auction was knocked down in favour of a close relative of the decree holder for a much lesser value of the property. After taking into account both those reasons the Apex Court held that the sale was vitiated. Facts of this case are different. It cannot be said that lack of publication of the proclamation in a newspaper has anyway vitiated the process of the sale in this case. 12. It may be noted that earlier on 23.07.2019, sale was conducted by the Execution Court, but it was set aside by this Court. After that, the process for sale of the property was initiated afresh and accordingly the sale has taken place. In order to set aside the sale, fraud or irregularity in publishing or conducting the sale, has to be established. Besides, it 10 F.A.O.No.101 of 2020 should be shown that such fraud or irregularity resulted in substantial injury to the judgment debtor. 13. The appellant did not succeed in establishing fraud or irregularity in publishing or conducting the sale. Taking entire aspects into account, we hold that there is no reason to say the sale is vitiated. Therefore, the appeal is devoid of merits. Hence, the appeal is dismissed. Pending interlocutory applications are closed. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr 11 F.A.O.No.101 of 2020 ## **APPENDIX OF FAO 101/2020** ## **PETITIONER ANNEXURES** - **ANNEXURE-A1 CERTIFIED COPY OF THE AFFIDAVIT FILED BY THE RESPONDENT IN E.P.NO.07/2012 BEFORE THE SUB COURT, KOTTARAKKARA** - **ANNEXURE-A2 TRUE COPY OF THE VALUATION REPORT SUBMITTED BY MR.K.RAVINDRANATH NAIR, BEEFORE THE EXECUTING COURT,DATED 15.07.2009** - **ANNEXURE-A3 TRUE COPY OF THE SALE PROCLAMATION RECEIVED BY THE APPELLANT DATED 12.04.2019** - **ANNEXURE-A4 CERTIFIED COPY OF THE SALE PROCLAMATION RECEIVED BY THE APPELLANT DATED 01.06.2020** - **ANNEXURE-A5 PHOTOCOPY OF THE APPLICATION E.A.NO.02/2020 FILED BY THE APPELLANT IN THE EXECUTION COURT.** - **ANNEXURE-A6 PHOTOCOPY OF THE NOTICE RECEIVFED FROM THE EXECUTING COURT TO THE APPELLANT DATED 13.11.2020.** - **ANNEXURE-A7 PHOTOCOPY OF THE MEMO DATED 01.12.2020.** - **ANNEXURE-A5 COPY OF MEMO DATED 21.12.2020 FILED BY THE APPELLANT'S COUNSEL BEFORE THE SUB COURT, KOTTARAKKARA.** - **ANNEXURE-A6 COPY OF THE OBJECTION DATED 31.05.2012 FILED BY THE APPELLANT TO THE ATTACHMENT PETITION IN O.S.NO.112 OF 2012 BEFORE THE SUB COURT, KOTTARAKKARA.** 12 F.A.O.No.101 of 2020 **ANNEXURE-A7 COPY OF THE FACE BOOK PHOTO OF THE RESPONDENT.**