The duty of the executing court to ensure fair value in the auction sale, the requirement to serve notice to the judgment debtor, and the need to sell only such property as is necessary to satisfy the decree.

G.H. Guttal, J.

1. This petition by the purchaser at the court auction in execution of the decree in O. S. No. 3 of 1978 impugns the validity of the order of the District Judge, Thalassery, in C. M, A. No. 34 of 1990 confirming the order of the Sub Judge, Thalassery in E. A. No, 48 of 1987 in E. P. No. 103 of 1986, whereby the latter allowed the Judgment debtor's application and set aside the sale under R.90 of O.21 of the Code of Civil Procedure (hereinafter referred to as the Code).

On 31st May, 1991 I allowed this petition in the absence of counsel for the judgment debtor. However, upon hearing the C. M. P. No. 3769 of 1991 by the judgment debtor, respondent No. 1 heroin, I set aside the order and restored this civil revision petition to file That is how this petition has come before me for hearing.

2. In this judgment the petitioner, the respondent No. 1 and the respondent No. 2 are referred to as the purchaser, the judgment debtor and the decree holder respectively.

3. The following facts may be taken to be undisputed.

The Execution Application No. 48 of 1987 for setting aside the sale, made by the judgment debtor, was based on these grounds: - (a) Due to ulcer on his foot he could not instruct his advocate to oppose the execution and (b) he received no notice of the Execution proceedings under R.66 of O.21 of the Code.

In his testimony in E. A 48 of 1987, he asserted the facts pleaded by him. But in the cross examination he admitted that he did not object to the report of the commissioner filed in the suit which set out the value of the property.

4. On 20-6-1990, the Sub Judge, Thalassery, allowed E. A. No. 48 of 1987 and set aside the sale.

5. The learned. District Judge dismissed the auction purchaser's C. M. A. No. 34 of 1990 on 1-1-1990, for these reasons: - The judgment debtor, was bedridden with ulcer and rheumatism from 31-12-1986. His property worth 2 lakhs was sold for a meagre price without allowing him to contest the case.

6. The notice under O.21 R.66 was served by affixing a copy on the house of the judgment - debtor. This was done on 3-12-1986. At the time of making the decree in 1978 commissioner was appointed. He valued the land at Rs. 34,000 = 00 and the house at Rs. 24,000 = 00. The total area is 20 cents. The judgment debtor did not file objections to the commissioner's report filed in the suit.

The reserve price at the auction was fixed at Rs. 20, 000 = 00. The decree was for Rs. 6200 = 00. The purchaser bought the property for Rs. 21,000 = 00.

7. On the basis of the facts set out above, learned counsel for the petitioner urged these points:

(a) Neither the execution application No. 48/87 nor the evidence of the judgment debtor brings out the facts necessary to justify an inference of material irregularity or fraud in publishing or conducting the auction sale which are basic requirements of sub-r.(1) of R.90 of O.21 of the Code.

(b) Nor is there any averment in the E. A. No. 48 of 1986 or evidence, to prove that the irregularity or fraud in publishing or conducting the sale caused substantial injury to the judgment debtor which is the legal requirement of sub rule (2) of R.90 of the Code.

8. The first question is, whether the judgment debtor was served with a notice of the proposed proclamation of sale. Sub-r.(2) of R.66 of the Code of Civil Procedure lays down that the proclamation of sale shall be drawn up after notice to the decree holder and the judgment debtor and shall state therein the particulars set out in clauses (a) to (e) of sub-r.(2) of R.66. Clause (e) of sub-r.(2) of R.66 of O.21 of the Code applicable in Kerala State, requires that the proclamation shall state not only the value of the property as stated by the decree holder but also the value as stated by the judgment debtor. Clause (e) of sub-r.(2) of R.66 of O.21 of the Code introduced by Notification in Kerala Gazette No. 23 dated 9-6-1959. Implicit in this provision is the right of the judgment debtor to assert his value of the property. T