Point of Law: sale of both items of property, without considering whether sale of one of the items would have been sufficient to satisfy the decree, is bad in law and liable to be set aside.

JUDGMENT :

Ajithkumar, J.

This is an appeal preferred under Order XLIII, Rule 1(j) of the Code of Civil Procedure, 1908. The appellant challenges the order dated 26.10.2021 by which the Additional Sub Court, Kottayam, dismissed E.A.No.205 of 2019 filed by the appellant seeking to set aside sale held on 13.3.2019 in E.P.No.39 of 2018 in O.S.No.279 of 2010.

2. O.S.No.279 of 2010 was filed by the respondent herein seeking a decree of specific performance with an alternative relief of return of the advance amount paid. The amount said to have been paid as advance is Rs.3,50,000/-. The suit was settled in the Lok Adalath. An award was accordingly passed allowing the respondent to realise an amount of Rs.4,50,000/-. The award further stipulated that, in default of payment of the said amount on or before 20.02.2012, the respondent would be entitled to realise the decree amount along with interest at the rate of 18% per annum. The appellant did not make payment in terms of the said award. Therefore, this award was put in execution. In E.P.No.39 of 2018 filed before the Additional Sub Court, Kottayam, two items of property belonging to the appellant were attached. Her property was eventually brought on sale. Two items of property are 1.38 Ares of land comprised in Resurvey No.494/3/2 (A-Schedule) and 1.10 Ares land along with a building comprised in Re-survey No.85/5 and 85/6 (B-Schedule) of Athirampuzha Village. After the proclamation was settled and proclaimed, the property was put in auction. The respondent, after obtaining leave under Order XXI, Rule 72 of the Code, bid the property in auction. The appellant thereafter filed E.A.No.205 of 2019 under Order XXI, Rule 90 of the Code seeking to set aside the sale. The Execution Court dismissed E.A.No.205 of 2019 on 26.10.2021. That order is under challenge in this appeal.

3. On 04.01.2022, when this case came up for admission, urgent notice was ordered to be served on the respondents. The respondents entered through their learned counsel.

4. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.

5. The point that arises for consideration is as to whether the sale of property conducted by the execution court on 13.03.2019 in E.P.No.39 of 2018 in O.S.No.279 of 2010 is liable to be set aside on the ground of material irregularity or fraud resulting substantial injury to the appellant?

6. As per Order XXI, Rule 90 of the Code, where an immovable property has been sold in execution of a decree, any person, who got aggrieved of such sale, may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting of the sale. Sub-rule (2) insists that such a sale shall not be set aside even on proving irregularity or fraud in publishing or conducting the sale unless the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. Sub-rule (3) provides that 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.

7. The learned counsel appearing for the appellant would contend that the sale is vitiated for five reasons, namely, (i) the decree (award) put in execution is against public policy, and therefore, not executable; (ii) there was no valid attachment of the property; (iii) sale of one item of the property alone was enough to satisfy the decree and hence sale of both items of the property is illegal; (iv) the sale was for an unconscionable low price; and (v) notice under Rule 66 of Order XXI of the Code was not properly served on the appellant.

8. The submission of the learned counsel appearing for the appellant is that the award of the Lok Adalath is against the provisions of law inasmuch as interest allowed in it is at an usurious rate of 18% per annum. It is also alleged that the appellant without understand