JUDGMENT

Ajithkumar, J.

The judgment debtors are the appellants. The respondent-

decree holder filed E.P.No.30 of 2016 for executing the decree for realization of money in O.S.No.68 of 2014 on the file of the Sub Court, Muvattupuzha. In execution the property belonging to the appellants was sold in auction on 26.02.2021. The respondent bid the property. Execution application, E.A.No.53 of 2021 filed by the appellants under Order XXI, Rule 90 of the Code of Civil Procedure, 1908 was dismissed as per the order dated 02.07.2021 which is under challenge in this appeal.

2. Heard the learned counsel for the appellants and the learned counsel for the respondent.

3. The appellants raised two grounds essentially; the respondent-decree holder bid the property for which the court granted permission under Order XXI, Rule 72 of the Code, but without serving a copy of the application on the appellants and, the auction price was much less than the market value of the property. The learned counsel appearing for the appellants explained further that a low upset price was fixed without taking into account the valuation of the property made by the Tahsildar or market value. The sale was made without taking into account the actual decree debt due, resulting in much loss to the appellants. For the said reasons, the learned counsel would argue, there occurred material irregularity in the conduct of sale, resulting in substantial injury to the appellants, and therefore, the sale dated 26.02.2021 is liable to be set aside.

4. The appellants produced ten documents, Annexures A1 to A10, which being copies of the documents forming part of the records in E.P.No.30 of 2016, are received on file for the purpose of perusal as per the order in Interlocutory Application No.2 of 2021.

5. With regard to the allegation that no copy of the petition filed by the respondent requesting permission to bid the property was given to the appellant, the recitals in Annexure A2 execution petition and the observations of the learned Sub Judge in Annexure A8 order are relevant. Annexure A7 is a copy of the application filed by the respondent before the executing court under Order XXI, Rule 72(1) read with Section 151 of the Code seeking permission to participate in the auction. It is true that there is no endorsement on it that a copy was served on the Appellants. It may be noted that one of the prayers in the execution petition was to grant permission to the respondent to participate in the auction, if there would be an auction sale. Ext.A8 is a copy of the order granting permission to the respondent under Order XXI, Rule 72(1) of the Code. It is noticed in it that both sides were heard before passing that order. In view of those matters, it is not possible to say that the permission to participate in the auction was granted to the respondent without notice to or hearing the appellants.

6. Almost a similar question was considered by the Apex Court in Jaswantlal Natvarlalthe Thakkar v. Sushilaben Manilal Dangarwala and others [AIR 1991 SC 770]. The following was the fact situation in that case: property had been purchased at the court auction by the decree holders. For effecting the purchase, the decree holders had applied to the court for permission under Order XXI, Rule 72 of the Code. The executing court gave the decree holders permission not only to bid the auction but also to bid at a price equivalent to 80 per cent of the upset price that had been fixed earlier for the auction and this had been done without any notice to the judgment debtor. The Apex Court held that a notice to the judgment debtor is necessary before permission is granted under Order XXI, Rule 72, particularly when the upset price is proposed to be reduced. The position of law was reiterated in Lal Chand v. Additional District Judge [(1997) 4 SCC 356]. It was held that under the teeth of the mandatory language of Order XXI, Rule 72 of the Code, the decree holder has no right to bid in the auction without ob