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Kutti Enuri Nethiar and anr. Vs. Union Timber Traders and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 448 of 1959
Judge
Reported inAIR1960Ker69
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115
AppellantKutti Enuri Nethiar and anr.;union Timber Traders and ors.
RespondentUnion Timber Traders and ors.;kutti Enuri Nethiar and anr.
Appellant Advocate N. Sundaran Iyer,; V.R. Venkatakrishnan and; P.R. Nambia
Respondent Advocate K.V. Surianarayana Ayyar, Adv. General,; T.C. Viswanatha Iyer, Adv. for Respondent 1,;
Cases ReferredKeshardeo v. Radhakissen
Excerpt:
civil - auction sale - section 115 of code of civil procedure, 1908 - auction sale in respect of forest produce - respondent was highest bidder - commissioner requested court to approve sale - petitioner raised objection that price fetched were inadequate - munsif overruled objection of petitioner and confirmed sale - revision against order overruling objections raised by petitioners - munsif failed to exercise his jurisdiction - impugned order set aside - court directed to enquire into objections raised by petitioners. - - according to the learned counsel, the learned district munsiff has failed to exercise a jurisdiction vested in him in law namely, of considering the objections raised by the petitioners and praying that the court should not approve the sale conducted by the.....ordervaidialingam, j.1. the defendants 110 and 115 in o. s. 402/1938 on the file- of the district munsiff's court, alathur are the petitioners before me'. the revision is against the order dated 27-5-59 overruling the 'objections of the petitioners, 011 commissioners' report in respect of a public auction held of a forest. the short facts leading upto this g.r.p. are as follows:2. in the course of working out the rights of the parties in what appears to be a long drawn out partition litigation instituted in 1938, there was originally an idea to dispose of the properties, which are mow the subject-matter of this revision, by a private sale.3. the commissioners appointed in the suit filed a report dated 11th may 1958 in which they have stated that according to the orders of the learned.....
Judgment:
ORDER

Vaidialingam, J.

1. The defendants 110 and 115 in O. S. 402/1938 on the file- of the District Munsiff's Court, Alathur are the petitioners before me'. The revision is against the order dated 27-5-59 overruling the 'objections of the petitioners, 011 commissioners' report in respect of a public auction held of a forest. The short facts leading upto this G.R.P. are as follows:

2. In the course of working out the rights of the parties in what appears to be a long drawn out partition litigation instituted in 1938, there was originally an idea to dispose of the properties, which are mow the subject-matter of this revision, by a private sale.

3. The commissioners appointed in the suit filed a report dated 11th May 1958 in which they have stated that according to the orders of the learned District Munsiff, they negotiated the likely purchasers besides the Government. They also stated that they invited offers for purchase of the forest by publication of notices in certain Malayalam Dailies and also 'The Hindu'.

4. In paragraph 3 of that report, they have also mentioned the offers received from certain persons. After mentioning all these facts, in paragraph 5, the commissioners suggested to the court that it would be in the interests of the Edom estate to hold an auction sale in respect of the forest, subject to the District Collector's permission under the M.P.F.F. Act. The attention of the court was also drawn to the fact that the Collector of Cannanore, Chairman of the Government Negotiating Committee, has also asked for information regarding the court's decision with respect to the offer made by the committee for purchase of the properties in the sum of Rs. 1,85,000. The learned District Munsiff, by order dated 24-7-58, directed the commissioners to apply to the Collector, of Palghat for permission to sell the forest showing all available particulars. The commissioners were also directed to inform the Collector of Cannanore about the other made by other private parties mentioned in paragraph 3 of the commissioners' report, Ultimately, the court, by order dated 12-1-1938, gave permission to the commissioners to sell the forest by public sale. In accordance with the directions of the court, the commissioners took steps to have a public auction,

5. It also appears that a draft proclamation prepared by the commissioners was discussed as between the parties before court and ultimately, on 26-3-59, the sale proclamation was approved by the court after hearing the representations of all parties. On 21-4-59 the necessary publications were made by the commissioners in the newspapers announcing their intention to hold a public auction forthe sale of the forest on 20th May 1959. Accordingly, a public auction was held on 20th May 1959 and the Union Timber Traders, Pollachi was the highest bidder for Rs. 4,06,000. In accordance with the terms and conditions of the sale proclamation, the said firm deposited 1/4 of the price with the commissioners. The commissioners filed a report on 21-5-59 before the court requesting the court to approve the sale conducted by them. It is at that stage that objections were tiled by the plaintiff and also the present petitioners before me.

6. The main grounds on which the present petitioners requested the court not to approve the sale held by the commissioners arc contained in their objection petition. It has been stated in paragraph 3 of the order that some of the objections of the petitioners were to the effect that the sale was illegal under the Partition Act and that the price fetched were inadequate. This objection was also supported by the plaintiff. To prove inadequacy of price in the auction the petitioners produced an offer by the 2nd respondent to purchase for Rs. 5,00,000.

7. On behalf of some of the parties and also on behalf of the highest bidder namely, the Union Timber Traders, Pollachi which is the first respondent before me, it was contended that the court has no jurisdiction to go into the matters raised in the objections. The court having autherised the commissioners to conduct the sale and the commissioners having accepted the highest bid namely, that of the first respondent before me, the court has no jurisdiction to withhold its approval to the sale especially when there was no allegation of fraud or irregularity in the conduct of the sale.

8. The learned District Munsiff considered the objections of the present petitioners and also the contentions raised by the various parties including these of the first petitioner before me and by its order dated 27th May 1959 overruled the objections of the present petitioners and confirmed the sale.

9. The reasons given by the learned District Munsiff for overruling the objections of the petitioners is to be seen in the reasoning made by him in paragraph 6 of the judgment. The learned District Munsiff was of the view:

'This is not the proper forum to attack the sale held by the commissioners. - The sale at this stage can be set aside or the court can withhold the approval of the sale if the parties make out a case of any malpractice or irregularity in the actual conduct of the sale of the commissioners...-.......If any ofthe parties are aggrieved by the same for any of the reasons either for inadequacy of price or, any irregularity they can move this court with appropriate application for setting aside the sale'.

Therefore, in brief, the learned District Munsiff was of the opinion that at the time when the salo comes up to mm for confirmation, he has no other duty but to confirm the sale and to require the parties who have got any objections, to raise them in an application to set aside the sale.

10. It is against this order of the learned District Munsiff that this revision has been filed.

11. One other circumstance also may be mentioned (viz.) that during the hearing of that application, the parties who objected to the confirmation of the sale, produced the second respondent before me, with an offer of Rs. 5,00,000 to purchase the suit properties.

The learned District Munsiff, regarding this observes;

'Simply because a local man now comes forward and says that he is prepared to pay a higher price for the forest cannot he accepted as a ground to set aside the sale'.

12. The order of the learned District Munsift is very strenuously attacked by Mr. Sundara Ayyar, learned counsel for the petitioners. According to the learned counsel, the learned District Munsiff has failed to exercise a jurisdiction vested in him in law namely, of considering the objections raised by the petitioners and praying that the court should not approve the sale conducted by the commissioners. The learned counsel also contended that the objections filed by his clients included objections not only to the publication and conduct of the sale but also to the grossly inadequate price fetched in the public auction.

To substantiate his contention that the price obtained in the public auction is grossly inadequate, the learned counsel very strongly relied upon the offer of Rs. 5,00,000 from one A. S. Muhammad-kutty Sahib who is the second respondent in these proceedings. The learned counsel criticised the reasoning of the learned District Munsiff that that is not the stage at which these matters are to be cone into. The learned counsel also particularly drew my attention to clause 3 of the terms of the sale proclamation to the effect that the sale to be held by the commissioners is subject to the approval of the court. This clause, according to the learned counsel, gives ample jurisdiction to the court to consider whether to confirm the auction held by the commissioners in the light of the objections made to the sale.

13. On the other hand, the learned Advocate-General appearing for the first respondent namely, the party whose bid was the highest in the public auction, has supported the reasoning of the learned District Munsiff. According to the learned Advocate General, the draft proclamation and the methed of sale were all agreed to by the parties. The court has practically delegated its powers to the commissioners and the commissioners have, in the discharge of their duties, conducted the sale and have accepted the offer made by the first respondent who was the highest bidder for the properties.

The learned Advocate General also contended that the reasoning of the learned District Munsiff that the proper forum is to file an application for setting aside the sale, is also correct. The learned Advocate General further contended that in the absence of any fraud or any allegations, or material irregularity in the conduct of the sale, the sale cannot be set aside. On the facts, the learned Advocate General contended that the present second respondent has been brought in by the parties more to spite the auction-purchaser namely, the first respondent. He was nowhere in the scene and did not care to attend the auction or to make any bid at that time,

14. Before considering the various contentions of Mr. Sundara Ayyar and the learned Advocate General, it is desirable at this stage to advert to some of the conditions mentioned in the sale proclamation. The sale proclamation which as has been rightly contended by the learned Advocate General approved by the court after ascertaining the views of all parties, contains several clauses of which, in my opinion, clauses 1 to 4 only have a baring regarding the subject of controversy in this C. R. P.

15. Clause 1 of the sale proclamation is to the effect that parties who are intending to bid in the public auction should make a deposit of Rs. 5,000/- as security and as soon as the auction is Over, the security will be refunded to these parties whoso bids have not been accepted,

16. Clause 2 of the sale proclamation specifically is to the effect that the commissioners willprovisionally accept the highest bid made at the auction and the party whose Highest bid is so accepted, must immediately arrange to deposit of the bid amount inclusive of the security already deposited, and in delault, the security amount will be forfeited to the State.

17. Clause 3 says that as soon as the auction is over, the commissioners, in order to get the approval of the court to the auction, will file the necessary report and as soon as that auction is approved by the court, the party whose bid has been accepted, must pay the balance amount within 15 days of approval by the court. If for any reasons the balance is not paid, there is a condition both in clause 2 and in clause 3 that the amount mentioned therein will be forfeited to the State.

18. Clause 4 further states that as soon as the full sale amount is paid, the purchasers must take the necessary steps to have a draft sale-deed, approved by the court, duly executed by the commissioners at the expense of the purchasers. The other clauses are not, in my opinion, material for this purpose.

19. It will be seen from the reference to the clauses above that clause 2 in particular, specifically says that the acceptance of the highest bid by the commissioners in the public auction will be only, provisional basis. Even the report is only to this effect.

20. Clause 3 again reserves a power in the court to approve the auction on the report filed before it by the commissioners. The Court comes into the picture again in clause 4 when the purchasers have to take the necessary steps to have a sale-deed, approved by the court, properly executed by the commissioners.

21. Even in the absence of any such recital as clause 3, reserving a power in the court there are decisions to the effect that the court has always an inherent jurisdiction to give its approval or not to a sale conducted by an officer of court. The earliest decision bearing on this matter is a decision of the Division Bench of the Madras High Court of Kris-hnan and Odgers, JJ. reported in Rutnasami Pillai v. Sabapathy Pillai, AIR 1925 Mad. 318. In that case notwithstanding the fact that the highest bid was accepted by an officer appointed to conduct an auction, the court declined to accept the highest bid and directed re-sale of the properties. The person who succeeded in making the highest bid, challenged this order of the court. It was contended before the learned Judges, as it is contended before me by the learned Advocate General, that a completed contract has been entered into with the purchaser by the court-officer namely, receiver in that case and the court should therefore have directed the receiver to complete the transaction in his favour. The learned Judges negatived this objection in the following words:

'The Receiver is an Officer of Court and whatever powers he exercises are delegated powers of the court which the court expressly gives him. He has no powers except what the court grants him. Unless the party can show that in this case the court has delegated its power of entering into a completed contract with third parties to the Receiver, any action taken by the. Receiver cannot be binding upon the court or upon the properties. All that the appellant is able to show is that he made the highest hid and that the published conditions of sale did not expressly state that the sale was subject to the confirmation of the court, The absence of such a statement cannot, in our opinion, be treated as implying that the court had abandoned its power of confirming the sale before it would take effect. Nodoubt the ordinary rule regarding private auction is, that where an auction is held without any reservation there is an implied condition that the highest bid will be accepted........The appellanthas not been able to reier us to any evidence to show that such a power had been granted by the Court in this case.'

Therefore, it is clear from the decision referred to above that even in the absence of a condition like clause 3 in the conditions of sale, the courts have always an inherent power to approve or not to approve a sale conducted by its officers. No doubt, as pointed out by the learned Judges, it is open to a party to establish that the court has given complete powers to the receiver or commissioners to enter into contracts witheut reference to the courts.

22. But in this case clause 3 in particular which reserves the ultimate power of approval in the courts, is, in my opinion, a pointer that the court has not at all given that complete autherity to the commissioners in this case. There is no material placed before me to show that the court in this case has given unlimited and complete powers to the commissioners.

23. The effect of a clause like the one before me namely, of reserving a power to approve in the court, has again been the subject of two Division Bench decisions in the Madras High Court. The earlier decision is the one reported in Soundararajan v. Mobamecl Ismail AIR 1940 Mad. 42 a decision of the learned Chief Justice and Mr. Justice Kunhi Raman. The learned Chief Justice who delivered the leading Judgment in that case, observes as follows at page' 43:

'It is only right and proper that the sale should be subject to the confirmation of the court. The) condition is a safeguard against irregularity or fraud in connection with the sale and against property being sold at an inadequate price.'

It must be stated at this stage that the learned Advocate General appearing for the first respondent, very strongly relied upon this decision as being in his favour. The learned Advocate-General's contention based upon this decision is that there was a reserve price fixed in the sale proclamation and the learned Judges declined to interfere with 'the highest bid in the public auction so held, notwithstanding the fact that at a later stage, a party came up and offered a higher amount.

But if the facts of that judgment are carefully looked into, in my opinion, this decision cannot support the contention of the learned Advocate-General. No doubt, in that case there was a reserve price of Rs. 1,10,000/- fixed, and the properties were sold for Rs. 1,12,500/-. When the matter came before the court for confirmation, there was an offer by a party in the sum of Rs 1,15,000/- that is, about Rs. 2.500/- over the highest bid in the auction.

The learned Judge on the Original Side, before-whom the matter came up declined to accept this higher offer and confirmed the highest bid in the public auction though the latter was a smaller amount then the one offered before the court. The party who offered this higher amount, took up the matter in appeal and it was in disposing of that appeal that the learned Judges made the observations referred to earlier. The learned Advocate-General in particular, referred to the following passage in this judgment:

'The fact that the sale is subject to the con-firmation of the court does net mean that the court shall refuse to accept the highest bid because at a later stage some one on second theught says that he is willing to pay 'more.'

According to the learned Advoate General, this reasoning extracted above will show that the fact that the highest offer is made at a later stage should not influence the court to withhold the confirmation of a sale properly held by its officers. The passage extracted above has to be read in the context in which it has been made.

24. No doubt, it will not ordinarily give anabsolute right to a party to keep quiet at the timeof the public auction and then come up to thecourt and make a higher offer then the one fetchedin the highest bid. But when the matter comesbefore the court for approval, it is open to theparty to make, a representation to the court thatthe price fetched in public auction is not an adequate price. This is the aspect, if I may say sowith respect to the learned Judges, which lias beenemphasised in the paragraph cited by me earliernamely, that the condition regarding reserving apower in the court is a safeguard agairst irregularity or fraud and 'against property being sold atan inadequate price' (nuderlining ('here into)is mine).

After these, the learned Judges observed that no such considerations applied to the tacts of the case before them. In tact, this aspect is again made clear by the learned Judges, when they observe that it is not suggested that the respondent's final bid in the auction was inadequate. There-fore, the fact that an upset price has been fixed will not debar the party, it he has got any grievance otherwise, to come and make representations to the court and satisfy the court that the price fetched in the auction is not an adequate price. After all, the fixing of a reserve price is only an indication that the parties expect at least that much for the property.

25. The matter has been again considered by a later Division Bench of the Madras High Court in the decision of the learned Chief Justice and Mr. Justice Vcnkatarama Ayyar reported in Sub-baraya v. Sundararajan, AIR 1951 Mad 986. In that case, an auction was directed to be held by the learned Judge sitting on the Original Side. The Advocate-Receivers, who had been appointed for this purpose, conducted an auction and in the auction there was a bid for Rs. 31,200/ and the receivers conducting the auction provisionally accepted the bid, subject to the approval or the court.

In accordance with the terms of the sale proclamation, the receivers also received the1 25 per cent, of the sale price and made a report to the court praying that the court may be pleased to confirm the sale conducted by them in favour of the highest bidder. It was at that time that the plaintiff made a complaint to the learned Judge that the highest bid fetched at the auction was not an adequate price and that she herself is prepared to offer a sum of Rs. 35,000/- which was much more then the amount fetched in the public auction. The learned Judge, after considering this matter ultimately was able to get a still higher offer from the plaintiff in the sum of Rs. 42,000.

It was contended before the learned Judge on behalf of the auction-purchaser that inasmuch as no irregularity or fraud in the conduct of the sale were alleged as against the advocate-receivers, it was not open to the learned Judge to ignore the highest bid and accept an offer which is made before the court theugh the latter is for a higher amount. The learned Judge did not accept this contention of the auction-purchaser and ultimately accepted the offer of the plaintiff made in court in the- sum of Rs. 42,000/- and gave certain consequential directions. That is, the learned Judgedeclined to give his approval for the public auction held by the commissioners.

26. The order of the learned Judge was taken up in appeal and Rajamanuar C. J., who delivered the leading judgment, observes at page 987 as follows:

'It is true that there is no suggestion of irregularity or fraud, but there was certainly a complaint of inadequacy of price. As the plaintiff eventually was willing to purchase the property lor Rs. 42,000/-, it must be taken that that amount represents fairly accurately the adequate price of the property. If that be so, then certainly, the highest bid which was only Rs, 32,100/- cannot be said to be adequate,'

and the learned judges confirmed the order of the learned trial Judge accepting the offer made before court.

27. The decision in AIR 1940 Mad 42 was also relied upon before the learned Judges as laying down a different proposition. The learned Chief Justice considered the said decision also and came-to the conclusion that the facts in that case were totally different from the facts before them. But the learned Chief Justice observes that the decision in AIR 1940 Mad 42 does not at all lay down a different proposition because even that decision has held that it is only right and proper that the sale should be subject to confirmation of the court and that such condition is a safeguard against irregularity or fraud and also against the property being sold for an inadequate price.

The learned Chief Justice also specially adverted to the circumstance before the learned Judges who decided the earlier decision namely, that no such consideration was present before the learned Judges. In fact, it is stated in the decision in AIR 1940 Mad 42 that the parties did not even make a complaint that the price fetched in the public auction is inadequate. It may also be mentioned at this stage that the decision of the Division Bench in AIR 1925 Mad 318 and already referred to by me is also referred with approval by the learned Judges in this later Madras decision.

28. I am in respectful agreement with the principles laid down in the three decisions referred to earlier and from this it follows that at the time-when the matter comes up before the court for confirmation and especially in this case, by virtue of clause 3 of the sale proclamation, the court should and in fact, it has got a 'duty to decide the several objections raised by the parties, including the objection raised based on inadequacy of price. In fact, in the decision in AIR 1951 Mad 986, the learned Judges specifically say that there is no case of fraud or material irregularity in the conduct of the sale by the commissioners and the main objection was only about the adequacy of consideration.

29. The learned Advocate-General relied upon a decision of Ameer Ali J. of the Calcutta High Court reported in Mahmooda Bibi v. Nainoo Bibi, AIR 1937 Gal 384. In my opinion, this decision: need not at all detain me very much, because from the facts it is clear that the whole matter of entering into a contract was left by the court to the commissioner as is clear from the observation of the learned Judge at page 386 to the effect:

'The whole matter was therefore left by consent to the commissioner.'

It is on this basis that the learned Judge considers as to whether he should interfere in a matter where the commissioners had already enteredinto a contract with a particular party. 'It was after the commissioner entered into such a contract that there was an offer by a third party to pay a higher amount and this was, if I may say so with respect, rightly rejected by the learned Judge.

30. The learned Advocate-General relied upon a decision of the Travane ore-Cochin High Court reported in Nagamma v. Nadarajan, AIR 1952 Trav-Co 393. That was a case of a sale held under the Travancore Debt Relief Act. The question before the learned Judges was whether the sale conducted in that case had to be set aside. This decision has been relied upon by the learned Advocate General for the proposition that only if material irregularity or fraud is made out, the party has got a right to have a sale conducted by the court set aside.

I do not think that this decision goes to that extent. The learned Judges (Sankaran and Gan-gadhara Menou JJ.) had only to consider whether in that case, a sale has to be set aside. In my opinion, the learned Judges even contemplate a sale, conducted by a court, being set aside on the ground that it has not fetched a proper price as will be seen from the observation of Sankaran J. at page 394:

'It cannot also be held .that the property has fetched a proper price as per the sale held under such circumstances by the officer of a court.'

The last decision relied upon by the learned Advocate General is; that of Mr. Justice Ganapatia Pillai, of the Madras High Court, reported in Lakshmi Ammai v. Thangaraju, AIR 1958 Mad 396. After a bid has been provisionally accepted in an auction by the commissioner, a party had made a higher, offer before the Court and the court had entertained the offer for consideration. But in the meanwhile, witheut hearing the party who had made the highest offer in court, the Court confirmed the highest bid obtained in the auction.

That order was sought to be reviewed by the party who made a higher offer in court and whose offer was also pending before the court. The only question that the learned Judge had to consider was whether the order of the lower court reviewing its previous order confirming its bill at the instance of a party who made a higher offer later, is legal or not. Mr. Justice Ganapatia Pillai came to the conclusion that the order of the lower court reviewing its previous order was without jurisdiction. This decision, in my opinion, does not at all carry the matter any further so far as the point for decision in this case is concerned.

31. From the principles laid down by the Bench decisions of the Madras High Court referred to by me with approval earlier, it follows that when a sale held by a receiver or a commissioner under orders of court, comes before the court for its approval, it has got not only ample jurisdiction but also a duty to consider the various objections raised by the parties and decide whether to give or not its approval to the sale conducted by the commissioner or receiver.

32. The learned Advocate General contended that the decision of the Supreme Court reported in Keshardeo v. Radhakissen, AIR 1953 SC 23 will stand in the way of this, court interfering under Section 115, C. P. C. with the order of the lower court. I do not think that the said decision, in any way, bars interference by this court in the exercise of its powers under Section 115, C. P. C. when a subordinate court, as in this case, has obviously failed to exercise a jurisdiction vested in it by law or acted with material irregularity in the exercise of its jurisdiction,

33. In this case, the report of the commissioners was a very brief one, In the said report, the commissioners stated that the highest bid was by the Union Timber Traders for Rs. 4,06,000/-. It is also stated that the commissioners have provisionally concluded the sale in favour of the Union-Timber Traders and collected from them the necessary 25 per cent, of the sale price. It is further slated that before the auction was commenced' there was an application made to them by the 112th defendant and some others requesting an adjournment of the same. Ultimately, the commissioners prayed the court to approve the sale conducted by them.

34. As stated earlier, the objections of the parties to the confirmation of the sale is to the effect that there has been some irregularity in the conduct of the auction and also that there has not been due publicity given for the auction. More then all these circumstances, the main point that has been urged in the objections and also before the learned District Mnnsiff is the one regarding: the inadequacy of the price fetched at the public auction. To substantiate their case of inadequacy of price the petitioners before me has produced an offer of Rs. 500,000 from the second respondent in these proceedings.

It is a hit difficult for me to follow some of the reasoning of the learned District Munsiff in paragraph 6 of his judgment. After stating that this is not the proper forum to attack a sale held by the commissioners, the learned District Munsiff observes that the commissioners themselves could have concluded the same and need not have shifted the responsibility to the court. This is rather, in my Opinion, an unfortunate statement made by the court especially when a specific power has been reserved by virtue of clause 3 of the sale proclamation. No doubt, after making the observation referred to earlier, the learned Munsiff relics upon clause 3. The sanctity and importance of a provision like clause 3 has not been correctly and properly appreciated by the learned District Munsiff. Further, the learned District Munsiff says:

'The sale can be set aside or the court can-withhold the approval of the sale if the parties, make out a case of any malpractice or irregularity in the actual conduct of the sale by the commissioners. The parties have no grievance against the manner in which the sale was conducted.'

This reasoning of the learned Judge is attacked by Mr, Sundara Ayyar that there are statements irn the objection petition to the effect that there has been irregularity in the conduct of the sale. As one instance, Mr. Sundara Ayyar pointed out that theugh there was a direction to publish the sale in 'Mathru Bhumi', 'Deshabhimani', 'Indian Express' and 'Malayala Manerama', no publication' was made in 'Malayala Manorama' as directed by the court. As I am not now disposing of the case on the merits, I do not propose to go into the various points of objection made in the objection-petition.

35. After having stated that the court can at that stage withhold the approval if there is a Case-of malpractice or irregularity, the learned District Munsiff is not prepared to concede the same jurisdiction in him to decide the matter at that stage if the grievance of the parties js 'for any of the irregularities'. I find it somewhat difficult to appris-ciate this reasoning of the learned District Munsiff, Either he has got jurisdiction to decide the points raised in the objection at this stage or he has no-jurisdiction whatsoever to decide any of the objections at any stage. 1 have already indicated that he-had not only jurisdiction, but it was his duty to have considered the various objections raised by the parties to the confirmation of the sale.

36. No doubt, it is not ordinarily open to parties, after a proper auction has been held and proper price has been obtained, to come up at the last minute and say that they are prepared to offer a higher price then the one fetched at the auction. But an important point to be considered at the time when the court's permission is asked for to confirm the sale is, apart from the question of irregularity or fraud or any such circumstance, as to whether the properties have been sold for an adequate price, in the case before me, the question assumes great importance in view of the firm other of the 2nd respondent of Rs. 5,00,000 as against the highest bid in the auction of Rs. 4,06,000/-.

37. In my opinion, the learned District Munsiff has failed to exercise a jurisdiction vested in him in law and erred in referring the parties to a separate application for setting aside the sale. The order dated 27-5-1959 of the learned District Munsiff overruling the objections of 110th defendant and the plaintiff and approving the sale of the forest conducted by the commissioners on 20-5-1959, are set aside and that court is directed to enquire into the various objections raised by the petitioners in their objection petition.

38. By virtue of an order of my learned brother, Raman Nayar J., I am informed by learned counsel on all sides that the second respondent herein has deposited in the lower court the entire sum of Rs. 5,00,000/- representing the offer that he has made before the court. The learned District Munsiff is directed to dispose of the objections, afresh after hearing all parties in the light of the remarks contained in this judgment.

Nothing that I have said herein incidentally about the merits of the contentions of the parties as to whether approval is to be given or not will be taken by the court, as, in any way, an expression of my views on these points. All parties are at liberty to file any further statements that they would like jn respect of this matter either for approving the sale or against approving the sale by the commissioners. Such statements must be filed within 10 days from today.

39. The amount deposited by the second respondent in the court will continue to remain in deposit pending further enquiry, to be made by the trial court in this matter. If on fresh enquiry, the learned District Munsiff is of the opinion that the sale in public auction in this case should not be confirmed by him, he shall conduct an auction only as between the first and second respondents before me in the C. R. P. starting with a bid of Rs. 5,00,000/- and accept the highest bid as between these two parties on usual conditions which will be fixed by that court.

This direction is given on the basis of a suggestion made by the learned Advocate-General and agreed to by all the ofher counsel.

40. As the amount of the first respondent in respect of the highest hid and of the second respondent in respect of his fresh offer are in court, the lower court will give a very expeditious disposal to this matter.

41. In view of the fact that the C. R. P. itself has been disposed of today C. M. P. 2419/59is dismissed. No order as to costs in the C. R. P.and in the C. M. P.


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