An application under Order 21 Rule 90 must be based on grounds available before the sale proclamation; otherwise, it is not maintainable.

JUDGMENT

The original petition is filed challenging Ext P11 common order passed in EA Nos.220 and 257 of 2022 in EA No.166/2022 in EP No.138/2011 by the Court of the Subordinate Judge, Moovattupuzha. The petitioner is the third additional judgment-debtor and the respondents are the decree-holder, judgment-debtors 1 and 2 and the auction purchaser in the execution petition.

2. The relevant background facts leading to Ext P11 common order are:

2. (i). The first respondent had filed OS No.173/2009, against the respondents 2 and 3, for realization of money.

2. (ii). The suit was decreed on 10.2.2010, permitting the first respondent to recover an amount of Rs.8,86,741/-

with interest and cost from respondents 2 and 3.

2.(iii). The first respondent laid the decree to execution by filing EP No.138/2011 before the court below, to proceed against the property of the respondents 2 and 3.

2.(iv). The petitioner claiming to be the owner of the property, by virtue of a Court sale in OS No.161/2007, got himself impleaded in the execution petition by the order passed in EA No.19/2015.

2.(v). Initially, the first respondent proceeded against an extent of 9 cents of property based on Ext P1 valuation certificate produced by the petitioner. However, the sale did not materialize. Subsequently, the first respondent proceeded against 15 cents of property, which was also unsuccessful.

2.(vi). The valuation of property in the year 2016 was Rs.1,75,000/- per cent. Nonetheless, ignoring the above valuation, the court below ordered the entire extent of 26.92 Ares of property to be sold after fixing the upset price at Rs.25,71,000/-.

2.(vii). The fourth respondent purchased the property in auction for an amount of Rs.25,72,000/-.

2.(viii). The petitioner has filed EA No.166/2022 (Ext P3), under Order 21 Rule 90 of the Code of Civil Procedure , to set aside the sale, on the ground of material irregularity in the conduct of the sale.

2. (ix). Then, the petitioner filed EA No.220/2022 (Ext P6), for the issuance of a Court certificate by directing the Tahsildar, Kothamangalam, to issue a valuation certificate of the property. The application was objected to by the first respondent through Ext P7 counter-statement.

2.(x). The petitioner also filed EA No.257/2022 (Ext P8) to appoint an Advocate Commissioner to be assisted by a valuer, to value the property. The said application was also opposed by the respondents 1 and 4 through Exts P9 and P10 counter-statements.

2. (xi). The court below, by the impugned Ext P11 common order, has rejected Exts P6 and P8 applications. 2. (xii). Ext P11 order is manifestly wrong and unsustainable in law. Hence the original petition.

3. Heard; Sri.S.V Balakrishna Iyer, the learned Senior Counsel appearing for the petitioner and Sri.Mohan Jacob George, the learned Counsel appearing for the first respondent on admission.

4. The question is, whether there is any illegality in Ext P11 order.

5. The suit was decreed as early as on 10.2.2010. The decree was laid to execution in the year 2011.

6. In the year 2015, the petitioner got himself impleaded in the execution petition, inter alia, contending that he was the owner of the property by virtue of the sale conducted by the court below in OS No.161/2007.

7. Indisputably, the execution schedule property was purchased by the fourth respondent in auction sale that was conducted on 25.7.2022.

8. Now, the petitioner has filed Ext P3 application to set aside the sale, which is pending consideration.

9. In order to substantiate the petitioner’s contentions in Ext P3 application, he has filed Exts P6 and P8 applications, to issue valuation certificate of the property and to appoint an Advocate Commissioner to assess the value of the property.

10. Order 21 Rule 90 of the Code of Civil Procedure ( in short, ‘Code’) reads as follows:

90. APPLICATION TO SET ASIDE SALE ON GROUND OF IRREGULARITY OR FRAUD.

(1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or