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V.V. Narayan Chetty Vs. Nenla Dhanamma and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetter Patent Appeal No. 38 of 1982
Judge
Reported inAIR1984AP159
ActsCode of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 97; Code of Civil Procedure (CPC), 1908 - Order 21, Rules 54, 60, 66(2) and 90
AppellantV.V. Narayan Chetty
RespondentNenla Dhanamma and anr.
Appellant AdvocateP.L.N. Sarma, Adv.
Respondent AdvocateE. Kalyanaram, Adv.
Excerpt:
.....1908 - property was sold for rs. 70500 as against decree holder's valuation of rs. 50000 given in sale proclamation - it cannot be said that property was sold for for low sum - no sale shall be set aside on ground of mere irregularity or fraud in publishing or conducting it - court to be satisfied that appellant has sustained substantial injury by reason of such irregularity or fraud - even if there is irregularity in publishing or conducting sale is committed then too appellant has to prove that he has sustained substantial injury by reason of such irregularity or fraud - sale cannot be set aside if irregularity or fraud not proved - held, concurrent finding is certainly well founded as property fetched sale price of rs. 70500 as against valuation of rs. 50000 shown in proclamation of..........it is mandatory on the part of the court to state the value as given by the judgment-debtor in the sale proclamation as per the provisions of sub-r. (2) (e) of r. 66 of o. 21 of the old act. he further contends that the e. p. no. 44 fo 1976 was filed before the amended c.p.c. came into force and since the said e.p. was pending the provisions of the old act would apply and hence sub-r. (2) (e) of r. 66 of o. 21 of the old act is mandatory to be complied with and thus the learned single judge committed an error in taking the view that the amended proviso to sub-r. (2) (a) of r. 66 of o. 21 applies but not sub-r. (2) (e) of r. 66 of o. 21 c.p.c. (old).5. we find ourselves unable to accept this contention. it is true that sub-r. (2) (e) of r. 66 of o. 21 of the old act requires the court to.....
Judgment:

Punnayya, J.

1. This appeal arises out of the judgment of our learned brother, Jeevan Reddy, in A.A.O. No. 707 of '79, which was preferred by the judgment-debtor, when his petition, E. A. No. 44 of 1978 in E. P. No. 44 of 1976 in O. S. No. 53 of 1974 was dismissed.

2. The judgment-debtor filed E. A. No. 44 of 1978 for setting aside the sale under O. 21, R. 90 C. P. C. His contentions (1) that the proclamation of sale did not mention the judgment-debtor's valuation and (2) that there is material difference between the valuation given in the publication and the valuation given in the proclamation and hence there is material irregularity committed in the conduct of the sale, are not accepted by the learned single Judge.

3. The learned single Judge took the view that the amended sub-r. (2) of R. 66 of O. 21, C.P.C., does not require that the proclamation should state the value as given by the judgment-debtor and that the second proviso makes it clear that it is not necessary for the Court to mention its own valuation in the proclamation, but if, any value is given by either or both of the parties, it should find a place hterein. He further held that inasmuch as the judgment-debtor did not give his valuation of the property, he cannot complain that his valuation does not find a place in the proclamation and that the sale is, therefore, not vitiated. So holding, the learned single Judge dismissed the appeal, A.A.O. No. 707 of 1979.

4. Sri. P. L. N. Sarma, the learned counsel for the appellant, contends that it is mandatory on the part of the Court to state the value as given by the judgment-debtor in the sale proclamation as per the provisions of sub-r. (2) (e) of R. 66 of O. 21 of the old Act. He further contends that the E. P. No. 44 fo 1976 was filed before the amended C.P.C. came into force and since the said E.P. was pending the provisions of the old Act would apply and hence sub-r. (2) (e) of R. 66 of O. 21 of the old Act is mandatory to be complied with and thus the learned single Judge committed an error in taking the view that the amended proviso to sub-r. (2) (a) of R. 66 of O. 21 applies but not sub-r. (2) (e) of R. 66 of O. 21 C.P.C. (old).

5. We find ourselves unable to accept this contention. It is true that sub-r. (2) (e) of R. 66 of O. 21 of the old Act requires the Court to state in the sale proclamation the value of the property as given by (1) the decree-holder and (2) by the judgment-debtor. If the sale proclamation does not contain the value of the property given by the judgment-debtor as required under O. 21, R. 66 (2) (e), it was treated as material irregularity vitiating the sale.

6. Our learned brother, Ramachandra Rao, J., Held in M. P. Narisi Reddy v. M. Venkayya : AIR1977AP234 that the auction sales held on 25-7-1959 and its subsequent confirmation, are illegal and are liable to be set aside as the mandatory provisions of O. 21, R. 66 (2) cl. (e) were not complied with inasmuch as the judgment-debtor's valuation was not mentioned in the sale proclamation. This decision was rendered on the basis of sub-r. (2) (e) of R. 66 of O. 21of the old Code. But sub-r. (2) (e) of R. 6 of O. 21 of the old Code does not survive in the amended C.P.C. of 1976. In fact the present amended sub-r. (2) (e) of R. 66 of O. 21, C.P.C., is entirely a different one, as it merely states that the proclamation should state every other thing which the court considers material for the purchaser to know in order to judge the nature and value of the property.

7. The second proviso to sub-r. (2) of R. 66 of O. 21, C.P.C., introduced by the Amended Act governs this aspect and it reads as follows:-

'Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given, by either or both of the parties.'

8. The proviso, therefore, makes it clear that it is not necessary for the court to mention its valuation in the proclamation. It also does not make it obligatory for the judgment-debtor, though it requires the Court to mention in the proclamation, if the value is given either by the judgment-debtor or by the decree-holder or by both the parties. If the proclamation does not give valuation of judgment-debtor, the sale is not vitiated under the amended provision.

9. The question is whether the amended provisions or the old provisions govern the matter. It is true that the sale proclamation does not mention the valuation of the judgment-debtor. If the old provision i. e. sub-r. (2) (e) governs the matter, then the sale is vitiated. If, on the other hand, the amended proviso governs the matter the sale is not vitiated. Admittedly the E. P. No. 44 of 1976 was filed in the year 1976 prior to the Amendment Act, which came into force on 1-2-1977. The sale was of course held and confirmed on 19-1-1978. When the E. P. was filed in the year 1976 prior to the amended act coming into force, can it be said that the provisions of the old Act govern the sale? Section 97, Civil P. C. Amendment Act, 1976, which came into being on 1-2-1977, provides for repeal and saving. Sub-section (2) provides that notwithstanding that the provisions of the Act have come into force or the repeal under sub-s. (1) has taken effect and without prejudice to the generality of the provisions of S. 6, General Clauses Act, 1897, (a) the amendment made to cl. (2) of S. 2 of the Principal Act by S. 3 of this Act shall not affect any appeal against the determination of any such question as is referred to in S. 47 and every such appeal shall be dealt with as if the said S. 3 had come into force. The proceedings that shall be continued unaffected by the amended provision are enumerated under various clauses in sub-s. (2) and the clause relevant for the purpose of this case is Cl. (q) which reads as follows:-

'(q) The provisions of Rr. 31, 32, 48, 57 to 97 to 103 of O. 21 of the First Sch. As amended or, as the case may be, substituted or inserted by S. 72 of this Act shall not apply to or affect-

(i) any attachment subsisting immediately before the commencement of the said S. 72, or

(ii) any suit instituted before such commencement under R. 63 aforesaid to establish right to attached property or under R. 103 aforesaid to establish possession, or

(iii) any proceeding to set aside the sale of any immovable property, and every such attachment, suit or proceeding shall be continued as if the said S. 72 had not come into force.'

10. Sub-section (3) of S. 97 of the Amendment Act reads as follows:-

'Save as otherwise provided in sub-s. (2), the provisions of the principal Act, as amended by this Act shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement.'

11. On a careful perusal of sub-s. (3), it becomes clear that the amended provisions of the Civil Procedure Code are applicable even to the proceedings, suits, appeals, or applications pending at the commencement of the Amended Act except to the extent mentioned in sub-s. (2) notwithstanding that the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed has been acquired or had accrued before such commencement. Sub-section (2) of S. 97 enumerates the cases which are excepted from the purview of the amended provisions. All the matters, except those which come within the purview of cases enumerated in sub-sec. (2) (q), are governed by the amended C.P.C. As the matter is governed by R. 66 it does not fall wihtin the category of matters enumerated in sub-cl. (i) of Cl. (q). Hence the amended provisions of C.P.C. only would apply to the case on hand. In such a case, the benefit of the provisions of sub-r. (2) (e) of R. 66 of O. 21 of the old Act are not available to the jud of Cl. (q). Hence the amended provisions of C.P.C. only would apply to the case on hand. In such a case, the benefit of the provisions of sub-r. (2) (e) of R. 66 of O. 21 of the old Act are not available to the judgment-debtor. Since the second proviso to sub-r. (2) of R. 66 of O. 21governs the matter, no illegality has been committed when the valuation given by the judgment-debtor was not stated in the sale proclamation.

12. As the notice was given to the judgment-debtor under sub-r. (1) of R. 54 of O. 21 requiring the judgment-debtor to attend the Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale, the judgment-debtor has to attend the Court and participate in the settling on the terms and give valuation of the property. When he failed to do so, he cannot complain that the sale is vitiated on the ground that the proclamation does not contain the valuation of the judgment-debtor.

13. Sri P. L. N. Sarma also contends that as the paper publication gave the value of the property as Rs. 25,000/- while the proclamation contained the Amin's valuation of one lakh and the decree-holder's valuation as Rs. 50,000/- and as a result of such defective publication, material irregularity resulting in substantial injury was caused. He, therefore, contends that the sale was hit by material irregularity as contemplated by O. 21, R. 90, C.P.C.

14. When the property was sold at Rs. 70,500/- as against the decree-holder's valuation of Rs. 50,000/- given in the sale proclamation, it cannot be said that the property was sold for a low sum. It is now well settled that the sale cannot be set aside under O. 21, R. 90 C. P. C., on the mere ground of low price for which the property was sold in the court-auction, unless it is proved that the property fetched low price as a result of fraud being playing by the decree-holder in getting the low price published for the purpose of getting the bidders only for such a low price and consequently the judgment-debtor has suffered substantial injury. The Supreme Court held in Radhey Shyam v. Shyam Behari, : [1971]1SCR783 that R. 90 of O. 21 of the Code provides that no sale shall be set aside on the ground of mere irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the appellant has sustained substantial injury by reason of such irregularity or fraud. It is, therefore, clear that it is not sufficient if the judgment-debtor proves irregularity being committed in publishing or conducting the sale under this rule. He is further required to satisfy the Court that he has sustained substantial injury by reason of such irregularity or fraud. If he has not proved that he has sustained substantial injury by reason of such irregularity or fraud, the sale cannot be set aisde, even if an irregularity in publishing or conducting the sale is committed. The learned Sub-ordinate Judge and the learned single Judge concurrently held that he judgment-debtor was not able to establish that he has sustained substantial injury as a result of difference of the value of the property in the sale publication and the proclamation. We think that the concurrent finding is certainly well founded as the property fetched a sale price of Rs. 70,500/- as agiasnt the valuation of Rs. 50,000/- shown in the proclamation of Rs. 25,000/- shown in the paper publication. Further the property sold was in possession of the tenant and hence the sale price of Rs. 70,500/- for the property cannot be said to be unreasonable Hence we find no substance in the contention of Sri P. L. N. Sarma on this aspect.

15. In view of our findings on both the aspects, we hold that the learned single Judge was justified in dismissing the appeal. Thus we find no merits in the L.P.A. and it is, therefore, dismissed, but without costs.

16. Appeal dismissed.


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