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Chethandosji Varu (Died) Digyadassan Rajendra Ramadasjee Varu Vs. the Board of Trustees Tirumalai, Tirupathi Devasthanams and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 30 of 1963
Judge
Reported inAIR1965AP334
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 54, 54(2), 66(2) and 90
AppellantChethandosji Varu (Died) Digyadassan Rajendra Ramadasjee Varu
RespondentThe Board of Trustees Tirumalai, Tirupathi Devasthanams and anr.
Appellant AdvocateA. Bhujangarao and ;A. Gopal Rao, Advs.
Respondent AdvocateP. Ramachandra Reddy, ;E. Kalyan Ram, ;K. Ramachandra Rao and ;E. Manohar, Advs.
Excerpt:
.....the effect of non-fulfilment of the terms of or. the object of the rule requiring affixture of the sale proclamation in the collector's office is to give sufficient publicity to the sale, where such publicity has been given to the sale in the present case the irregularity complained of can hardly amount to a material irregularity. provided further than no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. as we have already stated, there should be correlation between the damage suffered by the judgment -debtor and the material irregularities complained of. if the inadequacy of price is the result of factors other than the material..........by their lordships in the course of the judgment :'as regards the appellant's objection to the sale proclamation, their lordships consider that the waiver of the necessity for a fresh proclamation necessarily implied a waiver of objection to any defect appearing on the face of the sale proclamation, as the appellant no. 1 must have been fully aware of its terms in view of his miscellaneous appeal to the high court. the facts in this case are stronger against the said appellant than those in girdhari singh v hurdeo narain singh, 3 ind application 230 ( p. c. ) in which this board held that the waiver covered any objection to an error in the statement of the government revenue, as the judgment - debtor must have had the opportunity of seeing the copy affixed in the court house. this.....
Judgment:

Chandra Reddy, C.J.

(1) This appeal is directed against the judgment of the Subordinate Judge, Chittoor, dismissing a petition under O. XX1, Rule 90 of the Code of Civil Procedure.

(2) The history of this litigation covers a long period but it is not necessary to trace it to its origin. It is sufficient to refer to its immediate past. The 1st respondent, Tirumalai-Tirupathi Devasthanams represented by its Board of Trustees, filed two suits O. S. Nos. 51 and 52 of 1937, for possession of properties which were under the management of the Mahant of the Hathiramji Mutt, of which the appellant is the present Mahant, and for mesne profits. The suits were decreed as prayed for. Possession of the properties was immediately taken. The enquiry into mesne profits was subsequently held and ultimately a decree for Rs. 2,15,285-1-6 was passed towards mesne profits in both the suits on 31st March 1951. Complaining against the quantum of the mesne profits, appeals Nos. 745 and 746 of 1952 was carried to the High Court of Madras. As the judgment - debtor did not obtain stay of execution of the decrees, the decrees were put in execution and the properties belonging to the Mutt were brought to sale.

At the auction, the decree-holder, who had permission to bid and set off his dues against the sale price, purchased some of properties in dispute, in addition to other items not involved in these appeals and the 2nd respondent bought certain properties for Rs. 55,700/- Subsequently, the decrees passed by the Sub court, Chittor, in O.S.Nos. 51 and 52 of 1937 were modified by this Court, to which the appeals were transferred, and decretal amount was reduced to Rs. 1,26,496-0-6 in O.S. 51/137 and to Rs. 10,778-11-0 in O.S. 52/1937. This led to the sales of some items being set aside by this court and the sales being confirmed to the extent sufficient to cover the decree debt as reduced by this court.

(3) Therefore, proceedings giving rise to this appeal were initiated by the appellant under Or. XXI, Rule 90 of the Code of Civil Procedure.

(4) The complaints that formed the subject of that application no longer survive. They were found to be non-existing and no attempt is made to resuscitate them in this appeal.

(5) Two new grounds, which were not included in the petition were urged at the time of the arguments and it is they that are pressed before us. They are : (1) that the taxes payable in respect of the houses were not specified in the proclamation of the sale; and 92) that a copy of the order regarding the proclamation of sale was not affixed in the office of the municipality within the limits of which the properties under appeal are situate.

(6) The trial Court disallowed these objections on the ground that the objection as to these defects was waived by the judgment - debtor by waiver of the necessity for a fresh proclamation on an earlier occasion when he sought the postponement of the sales. it held further that the prices realised were not inadequate and that in any event, the inadequate of price and could not be regarded as the effect of the material irregularities. It is this conclusion of the learned Judge that is assailed before us.

(7) We have first to consider whether there are any material irregularities falling within the contemplation of O. XXI, Rule 90 c. P. C. The provision of law which requires the proclamation to be made giving certain particulars is Or. XXI, Rule 66. That rule recites :

'(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be drawn up in the language of such Court.

(2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment -debtor and shall state the time and place of sale, and specify as accurately as possible

(a) The property to be sold

(b) The revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;

(c) any incumbrance to which the property is liable;

(d) the amount for the recovery of which the sale is ordered; and

(e) the value of the property as stated (i) by the decree-holder and (ii) by the judgment - debtor; and

(f) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property.

(8) We are unconcerned with sub-rules (3) and (4) and therefore we do not propose to extract them here. This rule relates to the particulars to be included in the proclamation of sale. This does not bear on the fixture of notice in the Municipal Office. That is provided by Rule 54 read with Rule 57 of that order. Sub rule (2) of rule 54 with which we are immediately concerned postulates :

'(2) The order shall proclaimed at some place on or adjacent to such property by beat of drum or other customary mode. A copy of the order shall be affixed on a conspicuous part of the property and on a conspicuous part of the Court- house. where the property is land paying revenue to the Government , a copy of the order shall be similarly affixed in the office of the Collector of the district where the land is situated. Where the property is situated within cantonment limits, the order shall be similarly affixed in the officer of the Local Cantonment Board and the Military Estates Officer concerned, and where the property is situated within limits of a municipality in the office of the Municipality within the limits of which the property is situated.'

(9) It is manifested that in regard to properties situate within a municipality the proclamation should be published by affixing a copy thereof in the Municipal Office in addition to other modes of publication.

(10) We will first deal with the omission to include the taxes payable to the municipality in regard to the houses . Admittedly, the taxes payable in this regard have not been specified. Does this constitute a material irregularity with in connotation of Or. XX Rule 90 That depends upon whether it is one of the requirements of or. XXI, rule 66. The taxes payable to the municipality do not find a place in Or. XXI, Rule 66. Not withstanding this, Shri Bhujanga Rao seeks to bring that within the sweep of Or. XXI, Rule 66 by arguing that the word 'revenue' is of comprehensive import and takes in taxes payable to the municipality. We are unable to assent to this envisaged in clause (b) of sub-rule (2) of Rule 66, is revenue assessed upon the estate or part of the estate paying revenue to the Government . whatever may be the width of the significance of this expression, we do not think it covers taxes due to a local authority.

(11) Shri Bhujana Rao cites to us a decision of the Madras High Court in Ganamma v. Ketireddi ILR 46 Mad 736 : (AIR 1924 Mad 217) which contains the proposition that clause (b) applies to Shrotriem villages also as the quit-rent payable on them is revenue. We fail to see how the appellant can take advantage of this ruling. The learned Judges stated that the revenue assessed upon the estate contemplated by Rule 66, was not confined to revenue derivable from ryotwari lands. Here we are unconcerned with any items of charge upon lands which can be described as revenue. That case does not indicate that the property tax levied by the municipality is necessarily includible in the proclamation of sale by virtue of Or. XXI, Rule 66. The expression 'revenue comprehends only assessments, quit-rents, ground rents or any other chargeupon the land payable to government, it is difficult to equate property taxes collectable by a municipality to revenue assessed upon lands.

(12) Further, if really the Legislature intended that the property taxes payable to a municipality should be included in the term revenue, nothing would have been easier than to specifically state it by employing proper language. It is not as if the legislature was unaware of the existence of the properties in municipalities. Rule 54 discloses the awareness of the legislature in this behalf. So if it was thought that this is a material particular which would help the purchaser to know the value of the property, surely, the framers of the Code would have taken care to mention it in Or. XXI, Rule 66. So it is not unreasonable to premise that the legislature has deliberately omitted the house tax payable to the Municipality in clause, (b) of Rule 66. That being the real position, we do not think that the non-inclusion of the municipal taxes relating to these houses would amount to a material irregularity so as to attract Or. XXI, Rule 90. It is only omission to mention something which required by the statute that can be termed a material irregularity. Failure to set out details which are not essential, does not amount of Or. XXI, Rule 90.

(13) Neither Mac Naughten v. Mahabir Pershad Singh, ILR 9 Cal 656; nor Nana Kumar Roy v Golam Chunder Dey, ILR 18 Cal 422 is an authority for the proposition advanced by the learned counsel for the appellants. They only emphasise the need for mentioning the particulars contemplated by the provision of law which corresponds to Or. XXI, Rule 66 and lay down that omission to comply with the requirements in that regard would constitute a material irregularity. It is not stated in either of them that the amount of tax due to the municipality in respect of the houses do so would be regarded as non-compliance with the relevant section.

(14) Granting that this omission can be regarded as a material irregularity, can the appellant take advantage, of it, having regard to the attitude adopted by him at an earlier stage As already stated, in order to obtain an adjournment of the sale, he consented to waive he issue of a fresh publication of the proclamation. What is the effect of this waiver In our opinion, this implies necessarily a waiver of an objection as to any of the defects apparent on the proclamation. It is not asserted that the omission to mention taxes does not appear on the face of it. The appellant can reasonably be taken to have known that the proclamation was imperfect in this regard. At any rate, he had every opportunity to know it. In such a situation, he cannot object to the sale on that ground.

(15) This view of ours is reinforced by a judgment of the Privy Council in Raja Shyam Sunder Singh v. Kaluram Agarwala (1939)1 Mad. LJ 147 : (AIR 1938 PC 230 ). It was remarked by their Lordships in the Course of the judgment :

'As regards the appellant's objection to the sale proclamation, their Lordships consider that the waiver of the necessity for a fresh proclamation necessarily implied a waiver of objection to any defect appearing on the face of the sale proclamation, as the appellant No. 1 must have been fully aware of its terms in view of his miscellaneous appeal to the high Court. The facts in this case are stronger against the said appellant than those in Girdhari Singh v Hurdeo Narain Singh, 3 Ind Application 230 ( P. C. ) in which this Board held that the waiver covered any objection to an error in the statement of the Government Revenue, as the judgment - debtor must have had the opportunity of seeing the copy affixed in the court House. This objection of the appellants accordingly fails.'

(16) It follows that the argument based upon Or. XXI, Rule 66 (b) lacks substance and has to be negatived.

(17) Before we deal with the effect of this non-inclusion on the basis of its amounting to a material irregularity, we will do well to dispose of the argument that the failure to affix the proclamation in the office of the municipality has vitiated the sale. It is pertinent to remark that this plea was not advanced in the application giving rise to this appeal. No attempt was made to adduce any evidence in regard to this grievance. Nor was there any allegation that there was not even the beat of drum in the locality in which the properties were situate. it was only in the course of the arguments that this objection was raised. If that were, so we fail to see how the appellant can be said to have established that there was a contravention of the provisions of Rule 54. Before the appellant can request us to consider the effect of non-fulfilment of the terms of Or. XXI, Rule 54, he must show that there was no affixture of the proclamation in the municipality office. Moreover even if such an omission was proved it would not enure to the benefit of the appellant, since there was sufficient publicity in this regard The proclamation was admittedly published in The Hindu and Indian Express, which have a wide circulation.

(18) It was laid down by their Lordships of the Privy Council in Naganna v. Venkatrayudu AIR 1945 PC 178, that although the omission to state the revenue on an estate or part of an estate, paying revenue to the Government, where it is possible to state the amount accurately or even approximately, is a material irregularity, this would not have an adverse effect on the sale where, it was widely advertised in various daily papers and sufficient publicity was given to it. In the words of their Lordships.

'the object of the rule requiring affixture of the sale proclamation in the Collector's office is to give sufficient publicity to the sale, where such publicity has been given to the sale in the present case the irregularity complained of can hardly amount to a material irregularity.'

However, we need not pursue this point any longer having regard to the fact that this complaint did not find place in the application . Argument cannot take the shape of proof and in the absence of evidence in proof and in the absence of evidence in proof of an irregularity, the appellant cannot make a grievance of it in the course of the argument.

(19) We shall now proceed to consider whether the alleged material irregularities caused a substantial injury to the appellant with in the contemplation of Or. XXI. Rule 90. The crucial words of that rule are these:

'Provided further than no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.'

(20) Now, is there a basis for the conclusion that the appellant suffered damage by reason of these material irregularities Material irregularities per se will not invalidate a sale. Such irregularities will have the effect of avoiding the sale only if the connection is established between them and the inadequacy of price realised at the sale. It is not suggested that there was any evidence establishing the nexus between the alleged irregularities and the low price.

(21) But Shri Bhujanga Rao invites us to draw the inference from the fact that the properties did not fetch a fair price. Before we consider whether in fact the prices were very low, it is necessary to state that the inadequacy of price proprio vigore would not result in avoiding the sales. As we have already stated, there should be correlation between the damage suffered by the judgment -debtor and the material irregularities complained of. if the inadequacy of price is the result of factors other than the material irregularities complained of, the proviso to rule 90 cannot come into operation.

(22) That apart, we feel that there is no foundation for the grievance of the appellant that he sustained substantial injury in regard to the sales in dispute. It must be mentioned here that the target of attack in this appeal is item 34 only a house called Dharmasala and which was purchased by the 2nd respondent for a sum of Rs. 27,500. According to the appellant this property was easily worth a lakh of rupees and in spite of it, the bid was knocked down in favour of 2nd respondent for Rs. 27,500. The basis of this contention is Ex. A. 5 and the testimoney of P. Ws. 1 and 3. We think that the documentary and oral evidence relied upon by the appellant does not really come to his rescue.

(23) So far as Ex. A. 5 is concerned, it is not of much avail to him, though the properties sold thereunder fetched a price of Rs. 15 per square foot. it is to be observed in this connection that the house sold under that document was constructed within a decade of the transaction and was not a big one like the Dharmasala. Further, the vendee had to pay a high price for the reason, that he was having his business in that premises, having been in occupation as a usufructuary mortgagee, and he had also no other house. The situation in regard to item 34 was altogether dissimilar. The house was said to have been built 120 years before and was in a dilapidated condition. That being so, it had lost its use as a house, but could be utilised only as vacant space. In these circumstances, Ex. A.5 does not afford any criterion for evaluating item 34.

(24) coming now to the oral evidence called in aid by the appellant, P. W. 1 no doubt stated that the house could be valued at a lakh of rupees. But the trial court was inclined to disregard the evidence of this witness as he had no opportunity of valuing big houses like item 34. The Co-operative Bank of which he was the Director could only give loans on mortgage on houses valued upto Rs. 3000. So, the trial court thought that he had no occasion to value properties worth more than Rs. 6,000. The learned trial Judge refers to his admission that he was not present at any private sale adopting the said valuation.

(25) P. W. 3's evidence is not entitled to any credence for the reason that he had no direct knowledge of this house, but it is based upon hearsay.

(26) For these reasons, we cannot say that the assessment of the evidence of these witnesses by the trial Court is wrong. No conclusion can be based on this evidence that proper price was not realised for this item of property . There is not tangible evidence in proof of the inadequacy of the price fetched. Not a single witness had stated that he willing to bid for that house for a lakh of rupee or even anything more than for what it was sold. On the other hand, there is a large volume of oral evidence in support of the case of the respondent that this property could not be sold for a higher price. the witnesses examined by the respondents most of whom were respectable persons, deposed that they were anxious to buy these properties. but they were anxious to buy these properties. But they could compete with the decree-holder and the 2nd respondent as their bids were high. In this state of the evidence, it is futile to contend that the appellant suffered damage in regard to item 34.

(27) It must be mentioned that there was no complaint before us that the prices realised in respect of the other items were inadequate or low.

(28) For the reasons mentioned above, we are not satisfied that even in regard to item 34, the appellant has suffered substantial injury and much less as a consequence of the alleged material irregularities indicated above. In these circumstances, the appellant cannot be said to have successfully assailed the conclusions of the trail court.

(29) It follows that we must uphold the judgment under appeal and dismiss the appeal with costs. Advocate's fee is fixed at Rs. 500 to be shared equally between the counsel for respondents 1 and 2.

(30) Appeal dismissed.


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