The sole defendant in O.S.No.157 of 1994 on the file of the Sub Court, Alappuzha is the appellant in this Appeal. The said suit, instituted by one Sajit John who was the predecessor- in-interest of respondents 2 to 4 herein, was one for specific performance of an agreement for sale. The agreement for sale was marked as Ext.A1 dated 15.10.1993. The said suit was contested by the appellant and as per judgment and decree dated 6.2.2001, the Court refused to grant specific performance of the contract but instead granted a decree for return of the advance amount of Rs.30,000/-with interest due thereon. Since the appellant did not pay the amount decreed, his property was brought to sale. Initially 7 = cents out of 21 cents of property valued at Rs.60,000/-was put up for sale. As per the final sale proclamation the entire 21 cents shown as worth Rs.60, 000/- was put up for sale and was sold on 29.2.2008 for a sum of Rs.1,01,200/- which works out to Rs.4819 per cent. On 28.3.2008, the appellant filed E.A.No.184 of 2008 under Order 21 Rule 90 C.P.C for setting aside the sale on the ground that a low price was shown for the property, that the sale proclamation contained a mis- description, since the existence of the house in which the appellant was residing was not shown in the sale proclamation, that the price initially shown was brought down to the extreme detriment of the appellant resulting in sale of the property for an unconscionably low price and that there was procedural irregularity by way of non-compliance of Rule 330 of Civil Rules of Practice, Kerala.

2. The application was opposed by the 1st respondent, auction purchaser who inter alia, contended that the appellant/ judgment debtor, who did not object to the settlement of the sale proclamation or the description of the property therein, was precluded from raising the above amount for setting aside.

3. The court below after hearing both sides as per the impugned order dated 6.4.2009 accepted the contentions of the auction purchaser and dismissed the application. Hence this appeal.

4. I heard the learned counsel for the appellant as well as the learned counsel appearing for the 1st respondent, auction purchaser.

5. Advocate Shri. Chacko, the learned counsel for the Auction Purchaser made the following submissions before me in support of the above impugned order:-

This is a case in which the suit was filed as early as in the year 1994. The suit, after the protracted trial, was finally decreed on 6.2.2001. E.P.No.236 of 2003 was filed on 19.12.2003 for realization of Rs.61,845/-. The appellant, judgment debtor had not raised any objection to the notice under Order 21 Rule 66 C.P.C. The draft sale proclamation was settled on 13.10.2004 and that again without any objection. The sale was conducted on 29.8.2004. It is exactly on the 30th day that the appellant filed the present application for setting aside the sale under Order 21 Rule 90 C.P.C. After the 1976 amendment of the C.P.C. Sub Rule 3 to Order XXI Rule 90 reads as follows:-

"No application to set aside a sale under this 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."

Even before the incorporation of the said provision in the Code, the Apex Court in Dhirendra Nath Gorai and Subal Chandra Shaw and others v. Sudhir Chandra Ghosh and others (1964(6) SCR 1001) had observed as follows:-

"The non-compliance with the provisions of Section 35 of the Act (Bengal Money Lenders Act) is a defect or a irregularity in publishing or conducting the sale. A party who received the notice of the proclamation but did not attend at the drawing up of the proclamation or did not object to the said defect cannot maintain an application under Order XXI Rule 90 of the Code of Civil Procedure.

Even if he could, the sale cannot be set aside unless by reason of the said defect or irregularity he had sustained substantial injury."

The court b