Bhaskaran, J.

These two appeals are filed by the judgment debtors in Arbitration O.P.Nos.2 of 1995 and 38 of 1994 respectively. The Awards were passed by the City Civil Judge of Udupi in Karnataka State and they were transferred for execution to the Subordinate Judge's Court, Ernakulam. The appellants are the same in both the appeals. There were four Arbitration Original petitions against the appellants in which awards were passed and in two of them (Arb.O.P.Nos.26 of 1993 and 12 of 1994) full satisfaction was recorded and attachments were lifted. The validity of the sale in execution proceedings in the remaining two cases, is the question to be considered in these two appeals.

F.A.O.No.17 of 2005

2. This appeal arises out of the order in E.A.No.185 of 2001 in E.P.No.271 of 1997 in Art.O.P.No.2 of 1995 on the file of the principle Sub Court, Ernakulam. The execution petition was filed for realizing an amount of Rs.37,17,274/- by sale of seven items of properties. Though these items were shown separately it is not in dispute that they formed portions of a land called "Silver Sand Island" near Vyttila in Ernakulam City. Out of the seven items sold on 2-12-2000, sales of items 1, 3, 4 and 7 were already set aside at the instance of the auction purchasers in petitions filed under Order 21 Rule 90 of the Code of Civil Procedure on the ground of fraud and irregularity by orders dated 22-2-2003 and 2-9-2003. Sale of item No.5 was also set aside since the auction purchaser was the decree holder and on payment of the entire decree amount and interest, the decree-holder agreed for setting aside the sale. Therefore the appeal concerns only with regard to the sale of items 2 and 6 in the E.P. Schedule. All the items were sold on 2-12-2000. In E.A.No.185 of 2001 filed under order 21 Rule 90, the sales were sought to be set aside on the following grounds.

1. Material irregularity and fraud in publishing and conducting the sale. There was no proper publication for sale and there was collusion between the decree-holder and the auction purchaser. The proclamation schedule is incorrect.

2. The properties were sole for grossly inadequate price. Item 2 is having an extent of 27 cents, the market value of which was more than 54 lakhs. It was sold for Rs.2,45,000/-. Item 4 is having an extent of 1.1875 acres having market value of 35 lakhs and it was sold for Rs.3,25,000/-. Item 6 is having an extent of 1.55 acres. The value of the property is 3 crores and it was sold for Rs. 10,60,000/-.

3. The judgment debtors have suffered substantial injuries by reason of the sale.

3. In the objection filed by the auction purchasers these allegation were denied. It is contended that there was no fraud or irregularity in publishing or conducting the sale. All the items were sold for amounts far in excess of the upset price fixed by the court. The upset price fixed for item No.2 was Rs.1 lakh and it was sold for Rs.2,45,000/-. Similarly the upset price fixed for item No.6 was Rs.3,50,000/- and it was sold for Rs.10,60,000/-. There is no collusion between the decree-holder and auction purchaser as alleged in the petition.

4. The execution court found that the allegation of material irregularity and fraud were accepted by court in respect of item 1, 3 and 7 and the sakes were set aside by orders dated 2-9-2003 and the sale of item No.4 was set aside by order dated 22-3-2003. With regard to the remaining items, i.e., items 2 and 6 the execution court found that the judgment-debtors have not succeeded in establishing fraud and material irregularity in publishing and conducting the sale though these items were also sold as per the same sale proclamation on the same date and since the properties were sold for amounts in excess of the upset price it was not possible to find that the amount realized were not the proper price and no prejudice was caused to the judgment-debtors. The execution court did not believe the evidence of PW.2 who affixed the notice with regard