Objections under Section 47 CPC are limited to jurisdictional issues; challenges based on irregularities in sale must be made under Order 21 Rule 90 CPC.

JUDGMENT

(Dated this the 26^th day of March 2025)

The petitioner herein is the decree holder/auction purchaser and the respondent is the judgment debtor in E.P. 6/2020 in O.S 166/2013, on the files of the Sub Court, Paravur. This petition is filed assailing the order in E.A. No 183/2023, dated 28.2.2024, in the abovesaid E.P.

2. The petitioner is an octogenarian, who lent an amount of Rs. 7 lakhs to the respondent, on 02.09.2008. The respondent provided cheques that were subsequently dishonoured due to insufficient funds. The petitioner filed O.S. No. 166/2013 in the Sub Court, Ernakulam, on 18.02.2013, to which the respondent has filed a written statement dated 30.01.2014, stating that he has no means to pay and asserted the absence of property within the court's jurisdiction. Due to the respondent's repeated absences, he was declared ex-parte and an ex-parte decree was passed against him on 05.01.2016. Thereafter, the respondent filed a petition to set aside this decree as I.A. No. 4585/2016, which was allowed and the case was included in the list on 01.09.2016. The respondent again failed to appear, leading to a second ex-parte decree on 05.09.2016, following the setting aside of the second ex-parte decree again.

3. The respondent agreed to settle the dispute through mediation and on the basis of the mediation agreement, a judgment was passed in terms of the mediation.

4. The petitioner filed E.P 93/2018 in the Sub Court, Ernakulam. The respondent appeared on 05.10.2018, and filed an objection on 26.10.2018. The Execution Court recorded "no cross for Judgment Debtor ", since he did not appear before the court on 7.11.2018. Subsequently, the respondent filed another objection as Ext P3 in E.A. 774/2018 in E.P. 93/2018, again claiming inability to pay and stated that no property is situated within the jurisdiction of the Execution Court. Since the respondent's property was at Paravur, E.P No. 93/2018 was transferred to the Sub Court, Paravur, and renumbered as E.P No. 6/2020 and the Sub Court was directed by Ext.P4 to dispose of the E.P. within six months.

5. Thereafter, on 27.1.2021, both parties appeared, but on 29.1.2021, the respondent requested more time to file objections, and was posted to 11.2.2021. On that day, neither the respondent nor his counsel appeared, and the matter was posted for further steps on 18.2.2021. Subsequently, an attachment schedule (Ext P5) was filed by the petitioner on 17.2.2021. On 18.2.2021, as there was no representation from the respondent, the petitioner submitted the Fair Value Statement (Ext P6) and Encumbrance Certificate (Ext P7).

6. The court ordered attachment and issued a warrant, scheduling the sale proclamation on 20.3.2021. The sale was conducted on 17.1.2022, with an upset price of Rs. 15,75,000/-, and was confirmed on 23.3.2022.

7. The respondent failed to appear before the Execution Court on 4.1.2021, despite serving of notice and the court below noted appearance of the decree holder and the endorsement of Rule 67 shows that the process was served and the same returned unserved in view of Covid -19 restrictions. The respondent did not object to the attachment schedule filed by the petitioner and the draft sale proclamation was produced on 24.3.2021.

8. On 8.9.2021, as per order in E.A. No. 53/2021, the petitioner was permitted to participate in the auction, and the property was sold for Rs. 15,78,900/-. In fact, the decree amount as on 8.9.2021 was more than that of the purchase price, but the Court has miscalculated the same and has ordered for payment of balance. On 9.11.2021, the execution court noted that the balance consideration is not deposited, and the sale was not confirmed and resale was ordered.

9. On 30.11.2021, the court ordered notices to be affixed to the property and directly served at the respondent's residence. The upset price was fixed at Rs. 15,75,000/-, and the sale was scheduled for 17.01.2022. On 18.1.2022, the court recorded that the property was auctioned for Rs.