IMPORTANT POINT
Sale of attached property – Proclamation of sale drawn casually without compliance of mandatory requirement and a sale held in furtherance thereof is not a sale in the eye of law.

JUDGMENT

P.G. Ajithkumar, J.—The appellant has filed E.A.No.844 of 2019 in E.P.No.51 of 2017 in Arbitration Case No.18 of 2015 for setting aside the sale held on 21.05.2005 selling 4.05 Ares of land comprised in Sy.No.176/3 of Vadanappally Village belonging to him. That petition was dismissed by the III Additional District Judge, Thrissur as per the order dated 20.11.2020. The said order is under challenge in this appeal filed under Order XLIII, Rule 1(j) of the Code of Civil Procedure, 1908.

2. After the appearance of the respondent, the matter was referred for mediation as per the order dated 11.02.2021. The mediation took place in the Ernakulam Mediation Centre, High Court of Kerala was unsuccessful.

3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.

4. The appellant would contend that 4.05 Ares of land along with a double-storied building was sold for a meagre amount of Rs.7,50,100/-; whereas the said property worths Rs.65 lakhs. It is alleged that the proclamation schedule was drawn up without mentioning about the building thereon even and stating a low price. It is also alleged that there was no proper proclamation. When the sale was conducted with such serious irregularities and thereby a property worth Rs.65 lakhs was sold just for an amount of Rs.7,50,100/-, that resulted in substantial injury to the appellant.

5. The petition for setting aside the sale was resisted by the respondent-decree holder contending that having given sufficient opportunity to file objection to the proclamation schedule, the appellant could not seek to set aside the sale on such grounds. It was further contended by the respondent that the respondent-decree holder purchased the property for a commensurate price and no evidence to substantiate that the property would have fetched more value is let in. In such circumstances, the respondent took the stand that the plea for setting aside the sale by the appellant was not liable to be allowed.

6. The amount due under the arbitral award is Rs.20,82,897/-. In order for realisation of such an amount, the execution petition was filed by the respondent and the property belonging to the appellant, who is the 2nd judgment debtor, was brought on sale. It is seen that the appellant had filed an objection to the draft proclamation schedule. The court has settled the proclamation thereafter, however, estimating the value of the property to be sold as Rs.7,50,000/- and the sale proclamation was accordingly published. The respondent-decree holder had bid the property. The specific contention of the appellant is that the building in the property was not separately stated in the proclamation schedule and the price estimated was very low. PW1 is the wife of the appellant. She deposed before the court that the property is worth Rs.5 lakhs per cent. The learned counsel appearing for the appellant would submit that when sale of two cents of property would have fetched such a price, the decree holder brought the whole of 4.05 Ares and the building thereon on sale. It is accordingly contended that the sale was held totally in disregard to the mandatory provisions of Rule 64 of Order XXI of the Code and therefore the sale is liable to set aside.

7. The learned counsel appearing for the respondent, on the other hand, would submit that the sale was held after giving notice to the appellant and after considering his objections. The property was sold for the value it actually fetches. Touching to the above, the learned counsel appearing for the respondent has fallen back on Order XXI Rule 90(3) of the Code, which 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 of which the proclamation of sale was drawn up. The Apex Court in Desh Bandhu Guptha v. N.L. Anand and Rajinder Singh [(1994) 1 SCC 131] held that Order XXI Rule 90(3) of the Code is a special rule