IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN &

THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON THURSDAY, THE

4TH DAY OF JULY 2024 / 13TH ASHADHA, 1946 FAO NO.114 OF 2019 AGAINST THE ORDER DATED 26.03.2019 IN E.A.No.157 OF 2015 IN O.S.NO.95 OF 2009 OF SUB COURT, CHERTHALA -------

APPELLANT/PETITIONER IN E.A.NO.157/2015/DEFENDANT IN O.S.NO.95/2009:

BAIJU, AGED 44 YEARS, S/O. VIJAYAN PEEDIKACHIR, CHERTHALA EAST MURI, KOKKOTHAMANGALAM VILLAGE, 688 527 BY ADVS.

JOBY CYRIAC KURIAN K JOSE(K/001510/2019)

RESPONDENT/COUNTER PETITIONER IN E.A.NO.157/2015/PLAINTIFF IN O.S.NO.95/2009:

PRIYANKA RAJEEV, AGED 46 YEARS, W/O. RAJEEV, KEDARAM, THYKKATTUSERI MURI, THYKKATTUSERI VILLAGE, CHERTHALA TALUK-688 524.

BY ADVS.

SRI.MATHEW B. KURIAN SRI.K.T. THOMAS THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON

04.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Harisankar V. Menon, J.

This appeal is filed under Section 104 and Order XLIII Rule

1(j) of the Code of Civil Procedure, 1908 (for short, the Code) by the defendant in O.S.No.95 of 2009 and the petitioner in E.A.No.157 of 2015 in E.P.No.23 of 2012 in O.S.No.95 of 2009 before the Subordinate Judge’s Court, Cherthala. The application as above, for setting aside the sale conducted on 11.08.2015, was dismissed by the Subordinate Judge’s Court, Cherthala and the present appeal is filed, challenging the above order.

2. The short facts necessary for the disposal of this appeal are as follows:

The appellant-defendant had entered into an agreement with the respondent-plaintiff on 29.08.2008 for the sale of certain property in his ownership and possession for Rs.35,000/- per cent. Insofar as the sale did not take place in spite of the repeated requests as claimed by the plaintiff, she instituted O.S.No.95 of 2009 praying for a decree for recovery of the advance amount of Rs.5 lakhs paid to the appellant-defendant. The appellant- defendant resisted the suit by filing a detailed written statement. However, the suit is decreed on 04.07.2011 for the realisation of Rs.5,46,000/- with future interest. For the execution of the above decree, E.P.No.23 of 2012 in O.S.No.95 of 2009 was filed by the respondent-plaintiff. The plaint schedule property was put to sale, fixing the value thereof at Rs.10,17,500/-. The respondent- plaintiff-decree holder herself auctioned the property for Rs.10,17,600/-.

3. As the sale was not conducted by following the procedures prescribed as per law, the appellant-defendant filed E.A.No.157 of 2015 in E.P.No.23 of 2012 in O.S.No.95 of 2009 under Order XXI Rule 90 of the Code, for setting aside the sale, mainly pointing out that there was no notice as contemplated under Order XXI Rule 66(2) of the Code and that the total liability of Rs.5,20,000/- as regards the scheduled property shown in the auction notice was incorrect, insofar as all the cases referred to were settled before the sale notice was published. The appellant-defendant also disputed the fixed upset price at Rs.10,17,500/-.

4. The trial court by the impugned order found that the sale proclamation was published in the Collectorate, Alappuzha Village Office South and North, Cherthala, Court notice board, Cherthala South Grama Panchayat and in the plaint scheduled property, and no irregularity in publishing the sale proclamation was noticed as pointed out by the appellant-defendant. The trial court also referred to the encumbrance certificate which showed other liabilities to the extent of Rs.5,20,000/- and that the appellant- defendant did not produce any evidence to prove that the debts had already been cleared. As regards the contention with respect to the low value of the property concerned, the trial court found that the valuation certificate produced by the decree-holder shows the value as Rs.25,600/- per Ares in 2014 and the market value fixed by the court on 27.06.2015 was Rs.50,000/- per Ares, whereas the appellant-defendant did not produce any document to