Point of Law : Auction Sale - Once rateable distribution among two or more decree holders is ordered, it is always desirable to consolidate all the related Execution Petitions and are proceeded jointly.

JUDGMENT :

Ajithkumar, J.

This is an appeal filed under Section 104 and Order XLIII, Rule 1(j) of the Code of Civil Procedure, 1908. E.A.No.32 of 2020 in E.P.No.20 of 2016 in O.S.No.6 of 2015 before the Sub Court, Hosdurg, was an application filed by the 1st respondent under Order XXI, Rule 90 of the Code. That E.A. was allowed as per order dated 22.01.2021. Challenging that order, the decree holder-auction purchaser has preferred this appeal.

2. On 23.03.2021, this appeal was admitted to file and notice was ordered to be issued to the respondents. While the 1st respondent entered appearance through his learned counsel, respondents 2 to 4 did not turn up.

3. Heard the learned counsel appearing for the appellant and also the learned counsel appearing for the 1st respondent.

4. The appellant obtained a decree in O.S.No.6 of 2015 for realisation of Rs.10,49,935/- along with interest and costs from respondents 2 to 4. The appellant filed E.P.No.20 of 2016 where she brought initially 29 cents of property belonging to respondents 2 to 4 on sale. Respondents 2 to 4 challenged the order of the Execution Court to sell the whole of the property before this court by filing O.P.(C) No.2052 of 2017 contending that the sale of a part of the same would be sufficient to satisfy the decree. As per the direction of this Court, the Execution Court enquired further into the matter and ordered that the sale of 18 cents of land, namely, 11.759 cents and another plot of 7 cents, both comprised in Sy.No.270/2 of Perole Village, was enough to satisfy the decree, and the said property was sold in auction on 05.02.2020.

5. The 1st respondent filed P.L.P.No.2478 of 2017 before the District Legal Services Authority, Kasaragod, claiming that money was due to him from respondents 2 and 4. That matter was settled and an award allowing the 1st respondent to realise an amount of Rs.11 lakhs from the other respondents was passed. The same 29 cents of land belonging to respondents 2 to 4 was attached in E.P.No.45 of 2017 filed by the 1st respondent for the realisation of the said amount.

6. The 1st respondent knowing that E.P.No.20 of 2016 was also pending against respondents 2 to 4 and the same property was being proceeded against, filed E.A.No.55 of 2017 requesting the court to initiate steps for the rateable distribution as provided under Section 73 of the Code, once sale of the property is taken place. E.A.No.55 of 2017 was filed in E.P.No.20 of 2016 and after hearing the parties concerned, that application was allowed by the Execution Court as per order dated 03.10.2018. It was thereafter the sale of 18 cents of property has taken place on 05.02.2020. Soon the 1st respondent came with E.A.No.32 of 2020 seeking to set aside the sale, invoking the provisions of Order XXI, Rule 90 of the Code on the ground that the said sale was vitiated by fraud and irregularity. It was contended that when the property was scheduled to be sold after effecting necessary proclamation on 05.02.2020, the appellant approached the Execution Court on 01.02.2020 by filing E.A.No.22 of 2020 seeking permission to participate in the auction and also to allow set-off as provided in Order XXI, Rule 72 of the Code. That application was allowed by the Execution Court without giving notice to the 1st respondent. In the auction sale the property was purchased by the appellant for an amount of Rs.18,00,100/- and the entire decree debt due to him, i.e., Rs.15,14,657/- was allowed to be set off against the auction price. It was alleged that the decree holder did not pay the balance sale consideration also, but that contention was turned out to be incorrect. By contending that despite the order for rateable distribution, permission to bid and set off was granted in favour of the appellant in total negation of the provisions of Order XXI, Rule 72 of the Code, and that amounted to fraud and irregularity, resulting in substantial injury to the 1st respondent, he sought to set aside the sale.

7. The appellan