Point of Law : If sale is vitiated by material irregularity or fraud in publishing and conducting sale, which attracts Rule 90 Order XXI of C.P.C. The very maintainability of execution petition would very well be taken by invoking S. of C.P.C.

ORDER :

1. The appellants in C.M.A. No. 31/2019 on the file of the District Court, Kozhikode have filed this Civil Revision Petition under Section 115 of the C.P.C. In C.M.A. No. 31/2019, the petitioners herein challenged the dismissal of E.A. No. 425/2018 in E.P. No. 494/2017 in O.S. No. 93/2014 on the file of the Additional Sub-Court, Kozhikode. The sole respondent herein is the decree holder in the above suit.

2. Heard both sides in detail and perused the lower Court records.

3. The relevant facts for the determination of the case are under:

The decree holder herein filed a suit for the specific performance of an agreement for the sale of 5 cents of property. The matter was settled in the Adalath and the petitioners/defendants in the suit agreed to pay a sum of Rs. 6,50,000/-. Since the judgment debtors failed to pay the amount as per the award passed in the Adalath, E.P. No. 494/2017 was filed. In execution of the decree, the property offered to be sold was proceeded and thereafter the decree holder auctioned the property. Sale confirmed and sale certificate also was issued.

4. E.A. No. 425/2018 was filed by the judgment debtors to set aside the sale under Order XXI Rule 90 C.P.C. The Execution Court dismissed the above petition. The above order was challenged in C.M.A. No. 31/2019. The learned District Judge, who heard the above C.M.A. also confirmed the order of the Execution Court on the ground that, the challenge raised in the petition as regards to non-compliance of issuance of notice under Rule 66 is meritless. In paragraph No. 9 of the impugned judgment (Judgment in C.M.A. No. 31/2019) the appellate court observed as under:

I have gone through the entire case records. The notice under Rule 66 was served to the judgment debtors properly but they neither appeared nor raised any objections.

Further, it was found by the learned District Judge as under:

Since there was no objection the decree holder was directed to produce the draft sale proclamation, encumbrance certificate and others on 22.07.2018. The proclamation was published for effecting sale on 30.04.2018. In the meanwhile on 05.03.2018, E.A. No. 206/2018 was allowed advancing the hearing and permitting the decree holder to take part in auction and adjourned to 03.04.2018 for report of the publication. On 04.04.2018 the property was sold in auction and posted for confirmation of sale on 04.06.2018. On 04.06.2018 the case was adjourned by notification to 20.06.2018. On that day sale was confirmed and EP was closed.

5. Admittedly, E.A. No. 425/2018 was filed on 10.09.2018, almost three months after the confirmation of the sale, therefore, the learned District Judge found that this petition is otherwise barred by limitation. It is not in dispute that as provided under Order XXI Rule 90 C.P.C. where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. As per Article 127 of the Limitation Act, 60 days time is the period provided to set aside a sale in execution of a decree from the date of sale. Thus it appears that E.A. No. 425/2018 filed under Order XXI Rule 90 C.P.C. is barred by limitation. Therefore, the District Judge is justified in dismissing the appeal.

6. In this matter, after filing E.A. No. 425/2018, the judgment debtors filed E.A. No. 149/2019 and E.A. No. 150/19 for setting aside the ex-parte order after condoning the delay of 306 in filing the same. Those applications were dismissed by order dated 14.02.2019. Again E.A. No. 151/2019 was filed and the judgment debtors sought permission to deposit the decree amount with interest for setting aside the sale and the same was also dismissed.

7. It is zealously argued by the learned Senior Counsel, Advocate Sri Krishnanunni, appear