Proper procedures under the Code of Civil Procedure are essential in execution sales and must be adhered to ensure validity.

Sathish Ninan, J.

The dismissal of an application filed under Order XXI Rule 90 of the Code of Civil Procedure (“the Code”) to set aside an execution sale, is under challenge by the applicant-judgment debtor.

2. The sale held on 22.11.2024 is sought to be set aside alleging that the sale proclamation was not effected as prescribed under the Code and that the property sold is worth much more than the value fixed by the court. The execution court overruled the contentions.

3. We have heard Shri.Jamsheed Hafiz, the learned counsel for the appellant-judgment debtor.

4. The decree in an ARC of the year 2014 is under execution. The execution petition is of the year 2016.

5. In the execution petition, on 20.10.2017, the sale proclamation was settled for sale of 35 cents of property with a residential building thereon. The upset price fixed was Rs.70,00,000/-. The sale was repeatedly adjourned and finally the EP was closed.

6. As per order in E.A.No.230 of 2019, the EP was reopened. After several adjournments, the EP was posted to 15.07.2023 for settlement of proclamation. On production of the valuation certificate, on 20.09.2023, the court ordered a Commission to be taken out to identify the property. The Commissioner filed his report on 18.10.2023. Thereafter, the matter was referred to mediation but, was not settled.

7. On 09.04.2024, the court found that, for realisation of the decree debt of Rs.29,00,000/-, the entire extent of 35 cents with the house, need not be sold. Reckoning five times of the fair value of the property, the court held that only an extent of 9.50 cents from out of the entire extent need be sold for realisation of the decree debt. Accordingly, an Advocate Commissioner was appointed to identify the said extent.

8. The Advocate Commissioner filed a report identifying the 9.50 cents to be sold, excluding the house. No objection was filed by the judgment debtor to the Commissioner's report. Thereafter, proclamation was issued for sale of the said 9.50 cents, fixing the upset price at Rs.2,95,000/-. The sale was posted to 26.10.2024 and for report, to 28.10.2024. On that day the sale was not conducted and it was posted to 22.11.2024 after proclamation. The decree holder sought permission to take part in the auction. Permission was granted. The property was sold on 22.11.2024 for Rs.29,51,000/- and was purchased by the decree holder.

9. From the above sequence of events, it is evident that there was due proclamation and due consideration regarding the value of the property and also with regard to the extent of the property that would be necessary to satisfy the decree debt. While fixing the upset price, the court had due consideration to the fair value of the property. As was noticed, no objection was filed by him to the Commissioner's report. Out of the 35 cents, only 9.50 cents have been sold. The portion of the property where the house was situated has been excluded. For the above reasons, the contention of the learned counsel for the appellant that there was no draft proclamation published enabling the judgment debtor to file his objection, has no substance. All the requirements under the Code for conduct of sale have been satisfied. No prejudice has resulted to the judgment debtor. In the manner in which the court has proceeded to effect the sale, the sale is beyond challenge.

The execution court was right in having dismissed the application to set aside the sale. There is no merit in the appeal. The appeal fails and is dismissed.