IMPORTANT POINT
Sanctity should be attached to auction sale conducted for recovery of debt.

S. Palanivelu J.—The respondent is decree holder in OS No. 211 of 1996 on the file of Sub-court, Kallakurichi. It is a suit for recovery of money filed against the petitioner and the suit was decreed as prayed for. He filed E.P.No.3 of 1999 for attachment of sale of the immovable properties of this petitioner and accordingly attachment was effected and sale was also held by the Court on 14.7.2004 in which the respondent was the permitted decree holder in the auction. Pursuant to the sale, he complied with’ the relevant proceedings, deposited money and stamp papers for execution of the sale deed and the learned Subordinate Judge, Kallakurichi also executed the sale deed dated 14.7.2004 which was handed over to the respondent also.

2. Thereafter, this petitioner filed an application in E.A. No.186 of 2003 under Order 21 Rule 90 r/w Sections 43, 94 and 151 C.P.C. challenging the auction conducted by the Court and knocked off in favour of this respondent. In her petition, she alleged as follows:

2(a) The respondent had filed a suit against the petitioner and obtained a simple money decree on 31.8.1998 and purporting to execute the decree, had brought the property of the petitioner and in the court auction sale held on 12.3.2003, the respondent has got himself declared as the permitted decree holder/auction purchaser. Complaining against the material irregularity and illegality in the execution, the proclamation and in the conduct of sale, the petitioner files this application seeking to set aside the sale held on 12.3.2003 in respect of the petition mentioned property in favour of the respondent/decree holder auction purchasers.

2(b) That the property sought to be attached and brought for sale is a residential house, being the only house of the petitioner wherein he is residing and the property is exempted from attachment under Section 60 of the CPC. Hence, the alleged attachment and sale of the petition is ab initio void. Therefore, the entire execution proceedings culminating in the court auction sale are bad in law and therefore the sale alleged to have been held on 12.3.2003 is liable to be set aside. Further there are two houses in the property.

2(c) In the execution petition and in the sale proclamation, the measurement of the property is not at all mentioned. The property measures 2½ feet east west and 105’ north south with a thatched house therein within the Thiyagadurugam panchayat limits. The omission to give the relevant details of actual measurements has resulted in the property not fetching a reasonably fair price in the sale. The property will be worth not less than Rs. 3,00,000 on the date of the court auction sale. In fact the property was under a mortgage in favour of the decree holder himself for Rs.40,000 on a mortgage deed dated 27.1.1993 in which the then value of the property is given as Rs. 80,000. Therefore, in the year 2003, 10 years thereafter, the property is worth more than Rs. 3,00,000 and the sale in favour of the respondent for paltry sum of Rs. 90,100 is highly untenable and is liable to be set aside.

2(d) That there has been no valid attachment of the property and no valuation of the property by a court amin. Further there has not been due service of necessary notices as contemplated under Order 21 of the Code of Civil Procedure. The decree holder claims to be a permitted decree holder within the meaning of Rule 72 of Order 21 of CPC. Grant of permission to the decree holder is invalid in law and the purchase by the decree holder is legally and factually untenable and is therefore liable to be set aside. It is seen that the upset price appears to have been contrary to the amended provision of the code of Civil Procedure and appears to have been periodically reduced. Such fixing of upset price and reduction of the same at the request of the decree holder is contrary to law and has caused great prejudice to the petitioner resulting to grave miscarriage of justice and that there has been not on