N.J. KUNJACHAN, S/O. JOSEPH, RESIDING AT MANGALATHUKARI HOUSE, VARANAD P.O., CHERTHALA, ALAPPUZHA DISTRICT, PIN Vs. VENUGOPALAN, AGED 62 YEARS, S/O.NARAYANAN, VAZHACHIRA HOUSE, CHERTHALA SOUTH MURI, CHERTHALA SOUTH VILLAGE, CHERTHALA TALUK, PIN
LAWS(KER)-2017-2-69
HIGH COURT OF KERALA
Decided on February 17,2017

N.J. Kunjachan, S/O. Joseph, Residing At Mangalathukari House, Varanad P.O., Cherthala, Alappuzha District, Pin Appellant
VERSUS
Venugopalan, Aged 62 Years, S/O.Narayanan, Vazhachira House, Cherthala South Muri, Cherthala South Village, Cherthala Taluk, Pin Respondents

JUDGEMENT

P. Somarajan, J. - (1.) Challenging the judgment dated 26th March, 2014 in C.M.A. No.12 of 2013 on the file of the Court of the Subordinate Judge, Cherthala, the petitioner/2nd decree holder came up under Article 227 of the Constitution of India. The said judgment was by the first appellate court, against the order dated 13.3.2013 in E.A. No. 499 of 2011 in E.P. No. 122 of 2009 in O.S. No. 513 of 2006 (Ext.P5). The said application in E.A. No. 449 of 2011 was filed by the judgment debtor under Order 21, Rule 90 of CPC to set aside the sale conducted on 10.11.2011. The main allegation set forth is that the upset price shown in the proclamation schedule is not reflecting the actual value of the property as the property was having a value of more than Rs. 25 lakhs per cent and that what was sold is only half a cent and it would fetch an amount of Rs. 12,50,000/-, but it was sold for an amount of Rs. 1,05,500/-. The second respondent who purchased the property in court auction contested the application disputing the claim of the judgment debtor. The trial court, on consideration of Ext.C1(a) and after hearing both the parties, dismissed the application by its order dated 13.3.2013, against which C.M.A. No. 12 of 2013 was filed before the Sub Court, Cherthala. By Ext.P6 order, the Sub Court, Cherthala set aside the sale conducted in execution and allowed the application. Aggrieved by the said order, the auction purchaser came up with this original petition.
(2.) Heard Sri. K.S. Sajeev Kumar, the learned counsel appearing for the petitioner, and Dr. V.N. Sankarjee, learned counsel appearing for the respondent.
(3.) Going by the order passed by the first appellate court in C.M.A. No. 12 of 2013, it is clear that the first appellate court had taken into consideration the commercial importance of the property and non-entry of valuation of property made by the judgment debtor in the proclamation and found that there are procedural irregularities in the conduct of sale affecting the rights of the judgment debtor and accordingly, set aside the sale by allowing the appeal. The main challenge raised is that the first appellate court had taken into consideration the grounds which were available at the time of drawing of proclamation schedule at the Rule 90ORDER21 stage and thereby overlooked sub-rule (3) to Rule 90ORDER21 CPC.;


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