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1992 DIGILAW 347 (KER)

Suseela Devi v. Vamadevan

1992-09-04

BALAKRISHNAN

body1992
Judgment :- The appellants were judgment-debtors in O.S.No.167/82 on the file of Addl. Sub Court, Trivandrum. The respondent filed E.P. 292/84 to take steps to sell the property of the judgment-debtors for the satisfaction of the decree. The property of the appellants were proclaimed for sale and when the property came up for sale the appellants started paying the decree amount in instalments. Out of the total amount of Rs.23000 and odd the appellants paid Rs.6500/- and ultimately the sale was posted to 1-12-88. On that day the appellants did not make any payment and the property of the appellants was sold for Rs.14,730.64 on the same day. The appellants filed E. A. 460 of 1989 to set aside the same alleging that there was material irregularity and illegality in the conduct of sale. That application was dismissed. The material portion of the order reads as follows: "On 22-10-1987 also the 2nd J.D. paid Rs.500/- and again the case was adjourned for proclamation and sale. In such circumstance it is difficult to hold that the 2nd J.D. has no notice I find no irregularity or illegality in the sale. Hence this petition is dismissed. No costs." This appeal is against that order. 2. The counsel for the appellants raised several contentions. It is alleged that the decree-holder was allowed to bid the auction and the appellants were not aware of the permission granted to the decree-holder. For participating in the auction the decree holder filed an application under R.72 of Order XXI CPC and the lower court records produced in this case show that a copy of this petition was given to the appellants herein and the court granted permission to the decree-holder to bid for or purchase the property. So the sale conducted by the court below is not vitiated on this ground. 3. The other contention raised by the appellants is that the property was worth Rs.60000 to 70000 and the sale was for Rs. 14,000 and odd and this has resulted in serious injustice to the parties. It is also contended that the court below should have granted permission to sell only a portion of the property, as that by it self would have been sufficient to discharge the liability. The appellants had also applied for a commission to assess the market value of the property. The application for commission was rejected by the court below. It is also contended that the court below should have granted permission to sell only a portion of the property, as that by it self would have been sufficient to discharge the liability. The appellants had also applied for a commission to assess the market value of the property. The application for commission was rejected by the court below. The court has also not considered their objection. The application to set aside the sale was dismissed without adverting to any of these points. 4. The court below should have considered the merits of the claim set up by the appellants. The dismissal of the application simply on the ground that there was no irregularity or illegality in the same is not correct. The litigant should feel that his case is considered by the court. In order that a trial should be fair, it is necessary not only that a correct decision should be reached, but also it should be seen to be based on reason and that could only be seen if the judge himself states his reasons. Further more, if his reasons are at fault, then they afford a basis on which the party aggrieved by his decision can appeal to a higher court. But no appeal can properly be determined unless the appellate court knows the reasons of the lower court. That elementary principle has not been followed in the instant case. So I hold that the matter has to be considered afresh by the court below. I also record the submission made by the appellant's counsel that the judgment-debtors are prepared to pay the entire decree debt with interest thereon. The matter is remitted to the court below and the parties shall appear there on 12th October, 1992.