Appeal under Order 43 Rule 1 & 2 CPC., against the order/decree in E.A.No.421 of 2008 in E.P.No.282 of 2007 in OS No: 212 of 2006 dated 20/10/2010 on the file of the Court of the 1 Additional Senior Civil Judge, Rajahmundry.

The 1st respondent filed O.S.No.212 of 2006 in the Court of I Additional Senior Civil Judge, Rajahmundry, against the appellant for recovery of Rs.4 lakhs with interest. The suit was decreed ex parte, on 31-10-2006. The decree became final, but the appellant did not pay the amount. The 1st respondent got an item of immovable property owned by the appellant, under Rule 5 of Order 38 C.P.C., attached. The property was brought to sale on 22-04-2008 in E.P.No.282 of 2007, and the 2nd respondent emerged as the successful bidder for a sum of Rs.12 lakhs.

The appellant filed E.A.No.421 of 2008, with a prayer to set aside the sale. He pleaded that he was not aware of the execution proceedings and it is only when the Court record was verified, that he came to know about the same. He mentioned that the actual value of the property was not mentioned; the notice contemplated under law was not issued, and that the property was sold, almost at half of its value. Certain defects referable to the manner of conducting auction were also pointed out. The application was opposed by the respondents 1 and 2. They denied the allegation made by the appellant and stated that despite receipt of notice, the appellant did not participate in the proceedings at various stages.

Through its order dated 20-10-2010, the Executing Court dismissed the E.A.No.421 of 2008. Hence this Civil Miscellaneous Appeal. Sri Ch. Dhanamjaya, learned counsel for the appellant submits that the notice issued by the Executing Court before the sale proclamation was defective, and that it did not take necessary steps, to ascertain the market value of the property through the judgment-debtor, which is mandatory under law. He submits that by adducing oral and documentary evidence, the appellant has established that the value of the property shown in the sale proclamation was too meagre, and that the Executing Court ought to have set aside the sale.

Sri M.S.R. Subrahmanyam, learned counsel for the 1st respondent and Sri Y. Sudhakar, learned counsel for the 2nd respondent, on the other hand, submit that the grounds raised by the appellant are too technical and that the Executing Court had adopted the correct procedure. They submit that having failed to honour the decree, even after it has become final, the appellant did not participate in the execution proceedings effectively, though he was put on notice.

The decree passed in O.S.No.212 of 2006 against the appellant albeit ex parte, became final. An item of immovable property was attached, before judgment. After the decree became final, the 1st respondent filed E.P.No.29 of 2007 for sale of the property. The record does not disclose that the appellant participated in the proceedings, before the property was brought to sale.

Two principal grounds were urged by the appellant in his application to set aside the sale. They are: a) he was not served with proper notice, and b) the value of the property mentioned in the sale proclamation is too meagre.

The suit itself was not contested. It is not known as to when the appellant herein came to know about the ex parte decree passed against him. It appears that the same pattern was repeated in the execution proceedings also. The Executing Court ought to have insisted on proper service of notice on the appellant before proceeding to cause the sale of the attached property.

The statement as to the value of the property, which is proposed to be sold, assumes significance. The relevant provision, i.e. Rule 66 of Order XXI C.P.C., in it application to the State of Andhra Pradesh, mandates that the Court shall take into account, the value as furnished by the decree-holder, as asserted by the judgment-debtor, and the one, obtained through the recognized sources, obvious