The judgment debtor, whose application for setting aside the court auction sale under Rule 90 of Order XXI was dismissed by the Executing Court, challenges the order in this appeal. The suit was filed by the first respondent for amounts due to him as per an equitable mortgage created by the appellant/petitioner. The suit was compromised and a compromise petition was filed by the parties. The trial court passed a decree in terms of the compromise.

2. In execution of the compromise decree, E.P.No.91 of 2002 was filed by the decree holder for sale of the immovable property belonging to the judgment debtor. It would appear that there was attachment of the property, though it was not necessary since the suit was on mortgage. The Executing Court passed an order to sell the immovable property for realization of the decree debt. A proclamation was issued fixing the date of sale as 7.1.2003. On 7.1.2003, the judgment debtor paid a sum of Rs.25,000/- towards the decree debt. Though he prayed for adjournment of the sale, the Executing Court did not grant that prayer. As per the order in E.A.No.9 of 2003 dated 7.1.2003, the decree holder was allowed to participate in the auction. It would appear that the sale was adjourned to 17.2.2003. On that day, auction was held and the decree holder bid at the auction for a sum of Rs.4,00,100/-.

3. E.A.No.578 of 2003 was filed by the judgment debtor under Rule 90 of Order XXI to set aside the sale. He filed E.A.No.580 of 2003 for appointing a commissioner to value the property. According to the judgment debtor, the property is worth Rs.22 lakhs. The Executing Court dismissed the application for the issue of a commission on 20.8.2003 and on that date itself dismissed E.A.No.578 of 2003 filed by the judgment debtor to set aside the sale. The Executing Court confirmed the sale on 25.8.2003.

4. The contention of the judgment debtor is that the Executing Court did not fix the reserve price under Rule 72-A of Order XXI of the Code of Civil Procedure and, therefore, the sale is vitiated. It is further contended that the Executing Court erroneously fixed the upset price of the property at Rs.4 lakhs while the amount sought to be realized was more than Rs.7 lakhs and the value of the property sought to be sold was more than Rs.20 lakhs. It is also contended that sale of a portion of the property was sufficient to satisfy the decree and it was not necessary to sell the whole property including the residential house belonging to the judgment debtor where he is residing with his wife and children, aged mother and a dumb sister.

5. Learned counsel for the decree holder, on the other hand, contended that in spite of the compromise decree, the judgment debtor did not pay the decree amount as stipulated in the compromise and he deliberately evaded payment. The Executing Court duly published and conducted the sale. The publication was made in the newspaper fixing the date of sale as 7.1.2003. There was no irregularity or illegality in publishing and conducting the sale. There was no other bidder and as permitted by the executing Court, the decree holder bid in auction for a reasonable price. It is also contended that the objections now raised by the judgment debtor ought to have been raised by him before sale and those objections are not available to be raised now in view of sub-rule (3) of Rule 90 of Order XXI of the Code of Civil Procedure.

6. To appreciate the contentions raised by the judgment debtor as well as the decree holder, first of all it is necessary to ascertain the nature of the decree. The compromise petition mentions that the plaintiff shall have a charge over the plaint schedule property to the extent of the decree amount and interest. It is also provided in the compromise petition that upon payment of Rs.4,16,500/- the plaintiff shall hand over the original of the title deeds and the documents relating to the plaint schedule property and shall take steps to “release” the attachment order. It