The executing court has a statutory duty to address whether the sale of a portion of the property would satisfy the decree amount and to satisfy itself about the adequacy of the price offered before confirming the sale.

K.S. Radhakrishnan, J.

The question that has come up for consideration is as to whether O. XXI, R.90(3) is a bar in considering the question of jurisdiction, though not raised by the judgment debtor in the earlier proceedings.

2. Judgment debtor in O.S. No. 665 of 1991 on the file of the Sub Court, Trivandrum, is the petitioner and appellant herein. CRP is filed against the order in E. A. No. 84 of 1996, and C.M. A. is filed against the order in E. A. No. 67 of 1996. E. A. No. 84 of 1996 was filed for a declaration that the sale conducted on 12.4.1996 is illegal and void. E. A. No. 67 of 1996 is a petition for setting aside the sale.

3. 40 cents of land in Sy. No. 125/4/3/1 with a building thereon, and another three cents of land in Sy. No.129/lA/1-29 and 129/6/1 of Athiyannoor Village with a building thereon belonging to the judgment debtor and his wife were attached on 27.7.1993. Later, the court by order dated 29.3.1995 issued notice to the judgment debtor under O.XXI, R.66 CPC on 3.8.1995. Judgment debtor prayed for time for filing objections. Case was posted to 27.10.1995. Judgment debtor did not file any objection. Case was subsequently posted to 27.11.1995, and the proclamation of sale was settled on 1.2.1996. Properties were then brought to sale on 8.3.1996. Sale was later adjourned to 10.4.1996. On 9.4.1996 the judgment debtor filed an application for adjourning the same. Sale was adjourned to 11.4.1996. On 11.4.1996, the decree holder filed a petition to allow her to participate in the auction. On the basis of that petition, sale was adjourned to 12.4.1996. Petition filed by the judgment debtor was dismissed on 12.4. 1996, and the sale was effected. There were two items of properties and both the items were sold. One Chandrika, wife of Prabhakaran Nadar, the third respondent in C.M. A. bid in the auction.

4. The court then was closed for summer vacation. On the reopening date, judgment debtor filed a petition, E. A. No. 67 of 1996, under O. XXI, R.90 CPC to sell aside the sale conducted on 12.4.1996. He also filed a petition under S.47 read with S.151 CPC for a declaration that the sale conducted on 12.4.1996 is null and void. In the affidavit in support of the petitions, judgment debtor pointed out that court below has committed serious error in selling both the items of properties. It was stated that properties in Sy. No. 125/4/3/1 consisted of 40 cents of land with a building thereon. It was constructed in the year 1988 at a cost of Rs. 2 lakhs. According to the judgment debtor, the property is situated on the side of the road, and one cent of land would cost Rs. 25,000/-. The other item of property of 3 cents with a building thereon is sufficient to satisfy the decree amount.

5. Decree holder filed a counter affidavit stating that the auction purchaser has already deposited the entire decree amount, and petitions have been filed by the judgment debtor only to delay the confirmation of sale. According to her, three cents of land would not fetch the decree amount. It is also stated that judgment debtor did not raise all those contentions before the proclamation of sale was drawn up. Auction purchaser, third respondent in the C.M. A. also filed objections. It was stated that since she had already deposited the entire amount, court should confirm the sal a in her favour. It is also her cause that there is no material irregularity or fraud in conducting the sale.

6. Executing Court considered both the applications together. Court while disposing of both the applications, held as follows:

"Under O. XXI R.90(3) no application to set aside the sale under the rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. R.66 notice ordered to be issued by my predecessor on 29.3.1995 was served on J.D.J.D. prayed fortune to file objections on 3.8.1995 and the case was posted to 27.10.1995 But on that day no objection was filed. Ther