A judgment debtor must provide sufficient evidence of property value to contest the upset price in execution proceedings under the Code of Civil Procedure.

J U D G M E N T

Shoba Annamma Eapen, J:

The appellant is the judgment debtor/defendant in E.P.No.251/2008 in O.S.No.27/2007 on the file of the Sub-

Court Kozhikode.

2. The legal battle started in the year 2007. The suit was filed for recovery of money. The suit was decreed allowing the plaintiff to realize an amount of Rs.2,99,395/- together with interest at the rate of 6% per annum for the principal amount of Rs.2,75,000/- from the date of decree till realization from the defendant and his assets.

3. The above appeal is filed by the petitioner/

judgment debtor/defendant against the order dated 09.01.2014 in E.A.No.1013/2013 in E.P.No.251/2008, arising from the judgment and decree dated 07.11.2007 in O.S.No.27/2007 of the Sub Court,Kozhikode. For convenience, the parties are hereinafter referred to according to their status in the suit, unless otherwise stated. The above E.A was filed seeking to set aside the auction conducted on 23.07.2013 of the plaint schedule properties.

For execution of the decree, the plaintiff filed E.P.No.251/2008 before the Sub Court, Kozhikode. For realization of the decree amount, the plaint schedule properties were put for sale and the upset price was fixed at Rs.11,00,000/-.

4. For a fair disposal of this appeal, it is relevant to enumerate the cases filed by the judgment debtor before this Court. For realization of the decree debt, the plaint schedule properties were put for sale initially on 13.09.2012. Challenging the same, the defendant/judgment debtor filed O.P.(C).No. 2978/2012 and this Court delivered the judgment on 13.09.2012, which is extracted below:-

"The grievance of the petitioner/judgment debtor is that three items of property have been proclaimed for sale at 3 p.m on 13.9.2012 in execution of a decree in O.S.No.27/2007 on the file of the Court of the Subordinate Judge of Kozhikode. The contention of the petitioner are threefold and they are:

i. Only such of the property as is necessary to satisfy the decree debt need be sold.

ii. The existence of a building in the property has not been shown in the sale proclamation.

iii. The upset price for sale has been fixed at a ridiculously low price of Rs.11,00,000/- (Rupees eleven lakh only).

2. I permit the petitioner to apply for adjournment of the sale under Order XXI rule 89 of the Code of Civil Procedure . The petitioner shall deposit a sum of Rs. 25,000/- (Rupees twenty five thousand only) along with the application before 2.30 p.m on 13.9.2012. The court below shall adjourn the sale if such deposit is made. The court below shall incorporate the estimate of the decree holder as also the judgment debtor in the sale proclamation.

This is in tune with Order XXI rule 66(2) of the Code of Civil Procedure . The court below shall also rectify the sale proclamation by incorporating the building. The court below shall sell item No.2 property if the decree debt is not satisfied with the sale of item No.1 property. The court below shall sell item No.3 property if the decree debt is not wiped off by the sale of item Nos.

1 and 2 property.

Necessary orders shall be passed by the court below without delay. No further directions are warranted. The Original Petition (Civil) is disposed of."

5. Thereafter, pursuant to the judgment, the judgment debtor failed to deposit a sum of Rs.25,000/- on 13.09.2012. As the sale had not taken place on 13.9.2012, a fresh sale proclamation was drawn up on 09.04.2013. Thereafter, the judgment debtor filed O.P(C)No.1832/2013, challenging the fresh sale proclamation. This Court was not inclined to grant any order and accordingly, the above original petition was dismissed. After dismissal of O.P(C)No.1832/2013, the petitioner filed E.A.No. 727/2013 in E.P.No.251/2008 under Order XXI Rule 66 of the Civil Procedure Code. Since, no deposit was made as directed by this Court in O.P(C)No.2978/2012, the above E.A was dismissed. Thereafter, R.P.No.673/2013 was filed to review the judgment in O.P(C)No.2978/2012. The said review petition was d