The executing court's arbitrary reduction of the upset price in an auction sale without justification constitutes a material irregularity, warranting the setting aside of the sale.

JUDGMENT

P.V.BALAKRISHNAN,J This appeal is filed by the petitioner in E.A.No.145/2017 in E.P.No.90/2014 in O.S.160/2012, aggrieved by the order passed therein dismissing his petition filed under Order 21 Rule 90 CPC, by the Sub Court, Vadakara.

2. It is the contention of the appellant/judgment debtor that his property having an extent of 1.25 acres of land was put in auction sale for realising the decree amount of Rs.32,57,922/- by fixing the upset price at a very low rate of Rs. 29,00,000/-. It is also his contention that the upset price was thus fixed on an application filed by the decree holder as E.A.No.112/2017, when on the previous occasion the auction sale conducted by fixing the upset price as Rs.93,75,000/-, failed due to non bidding. It is his further contention that the executing court has arbitrarily and without any reasons reduced the upset price to Rs.29,00,000/- at the request of the decree holder and the same is a material irregularity causing substantial injury to the appellant.

3. Per contra, the contention of the respondent/decree holder is that, initially the property was put on auction sale by fixing upset price at Rs.29,30,000/- and the same did not materialse since the bidder did not make the requisite deposit. It is also his contention that subsequently the property was again put on sale by fixing the upset price at Rs.93,75,000/- and the same ended in failure as there were no bidders. Hence, the Executing Court, after considering the afore facts, reduced the upset price to Rs.29,00,000/- and ordered sale.

4. Heard both sides.

5. On an appraisal of the materials on record, it is to be seen that the property was put on sale on 20/11/2017, by fixing the upset price as Rs.29,00,000/-. The upset price was thus fixed by the executing court as per order in E.A.No.112/2017, dated 19/10/2017. The afore order shows that the said application was filed by the decree holder to reduce the upset price from Rs.93,75,000/- to Rs.25,00,000/- since, there were no bidders. It is to be taken note that the appellant has opposed the said application and has contended that the property would fetch a much higher value. The order in E.A.No.112/2017 reveals that the executing court has, without assigning any reasons, reduced the upset price to Rs.29,00,000/- and has ordered to proclaim and sell the property. The executing court also did not take into consideration the report of the Advocate Commissioner assessing the market value of the property, while passing the afore order. Such drastic reduction of the upset price without assigning any reasons is a material irregularity and will undoubtedly, cause substantial injury to the judgment debtor/appellant. If so, we are of the considered view that the sale conducted on 20/11/2017 cannot sustained.

In the result, this appeal is allowed as follows;

i) The order dated 6/1/2018 in E.A.145/2017 in EP 90/2014 in OS 160/2012 passed by the Sub Court, Vadakara is set aside and EA 145/2017 is allowed.

ii) There shall be a direction to the executing court to proceed afresh with the sale and complete the proceedings within six months from the date of receipt of a copy of this judgment.

iii) Both sides are directed to appear before the executing court on 17/12/2024.