Material irregularities in property sale, particularly inaccurate descriptions affecting third-party rights, are grounds for setting aside a sale under Order XXI Rule 90 of the CPC.

Harisankar V. Menon, J. The decree holder in E.P.No.130 of 2018 in O.S.No.130 of 2016 on the file of the Additional Sub Judge, Kottayam, is the appellant herein. This appeal is filed against the order dated 09.11.2021 in E.A.No.2 of 2020 in E.P.No.130 of 2018, by which the execution court has set aside the sale under Order XXI Rule 90 of the Code of Civil Procedure, 1908 (for short, CPC), at the instance of the judgment debtors (respondents herein).

2. The decree sought to be executed was a compromise decree whereby the plaint schedule property was charged for the realisation of Rs.54,15,228/- with interest at 10% per annum, chargeable cumulatively with monthly interest from 1st February, 2018, from the judgment debtors. It is seen that the case was posted for proclamation and the sale of decree scheduled FAO No.26 of 2022 4 properties on 04.03.2020 and on the same day it was purchased by the decree holder. The property sold in auction was having a total extent of 39.68 Ares.

3. Later, the judgment debtors 1 to 3 filed E.A.No.2 of 2020 in E.P.No.130 of 2018 in O.S.No.130 of 2016 under Order XXI Rule 90 of CPC for setting aside the sale. In the above petition, it is pointed out by the applicants-judgment debtors 1 to 3, that the description of the property in the schedule as 36.44

Ares comprised in resurvey No.218/2 and 84 square meters of land comprised in resurvey No.219/8 was not correct, since out of the total extent, 2.01 Ares is situated in resurvey No.218/2-2, 43 square meters in resurvey No.218/2-3, 34 Ares in resurvey No.218/2-4, 2.40 Ares in resurvey No.219/5 and 84 square meters in resurvey No.219/8-1. It is also pointed out that the judgment debtors were not having an absolute saleable interest in the property, since the property of 39.68 Ares belongs to the first judgment debtor, wherein the second judgment debtor had constructed an apartment building complex having a total built- up area of 2.5 lakhs square feet comprising of 165 apartments, FAO No.26 of 2022 5 several of which were already sold out to third parties with undivided right in the land. Therefore, it was pointed out that the property cannot be said to belong to the first judgment debtor absolutely and the property was having a market value of Rs.3 crores and the apartments were having a market value of more than Rs.75 crores, which aspect was purposefully and fraudulently suppressed by the decree holder in the execution petition, because of which the upset price happened to be fixed at Rs.40,00,000/- alone. It is further pointed out by the judgment debtors that no notices were served on the purchasers of the apartments because of which their interests are also affected. Ultimately, it was prayed that the sale not being in accordance with law, ought not to have been confirmed, since there is an irregularity and lapse in the preparation of the sale proclamation which goes to the root of the matter. The judgment debtors specifically pointed out that the decree-holder had interest only in a three bed room apartment bearing No.12(A) TB1 having a super built-up area of 1465 sq.feet on the 13th floor FAO No.26 of 2022 6 of “Nest Orchid Apartments” along with a car parking area, the sale of which alone is sufficient to satisfy the decree.

4. The decree holder also filed objections contending that the petitions filed under Order XXI Rule 90 of CPC as above are not maintainable either in law or on facts, that the same property scheduled and charged by the compromise decree passed was alone put for sale, that the judgment debtors agreed that the decree-holder shall be entitled to sell the decree scheduled property for recovering the amount due to her, that as the decree scheduled property was put to sale, the judgment debtors are estopped from raising any objection against the same, that sale has been published and conducted in compliance with the law, that the description of the property in the proclamation schedule, valuation and fixation of upse