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V. Rajagopal Naidu Vs. Smt. Muthulakshmi Ammal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 2577 of 1965
Judge
Reported inAIR1969Mad5
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 21, Rules 66, 66(2) and 69; Madras Code of Civil Procedure (CPC) Act; Evidence Act, 1872 - Sections 115
AppellantV. Rajagopal Naidu
RespondentSmt. Muthulakshmi Ammal and ors.
DispositionPetition allowed
Cases ReferredPottareddi v. Karuppa Goundan
Excerpt:
.....put against him before his rights are barred by waiver.; on the question raised as to whether the sale proclamation could be regarded as defective in that the valuation of the judgment-debtor was not incorporate therein and such an inchoate and irregular sale proclamation cannot be the foundation of a legal and valid court or public sale, held, that if a proclamation is drawn up on inchoate and illegal material, and in any event on the basis of information which was either incorrect or untrue, then the resultant sale would be a nullity and it will not be a case of mere irregularity. if a sale proclamation does not contain a mandatory and a statutory requirement, the mere fact that the constructive notice of sale and notice under order xxi, rule 66, civil procedure code (act v 1908) is..........findings of fact of both the courts below.3. but the contention of the judgment-debtor that the sale proclamation was defective in that the valuation of the judgment-debtor was not incorporated therein and such an inchoate and irregular sale proclamation cannot be the foundation of a legal and valid court or public sale, has considerable force. the trial court does not appear to have adverted to this material circumstance. the lower appellate court, however, held that there is nothing on record to show that the judgment-debtor gave any value for being mentioned in the sale proclamation and therefore it held that the sale is not vitiated and not liable to be set aside. i shall presently advert to the other main contention of the petitioner that by reason of the irregular proclamation.....
Judgment:
1. The judgment-debtor-petitioner, aggrieved by the orders of the lower court who refused to set aside a sale of the property in execution of a money decree, canvasses the legality of the same, as petitioner in this court. The petitioner's case is that the property has been valued by him even at the stage when it was attached before judgment at Rs. 6500. After the suit ended in a compromise decree, the attachment having been raised, that first respondent-decree-holder reattached the property in execution. The property consists of two items (1) garden land of an extent of 74 cents and (2) cultivable land of an extent of 58 cents with a well in it. In E.P. 632 of 1962, the property was valued by the village munsif itemwar at Rs. 800 and Rs. 1000 each. Incidentally the second item of the property was subject to an encumbrance in favour of the Co-operative Society from whom the judgment-debtor secured a loan to widen the well. After the property was attached in execution, the petitioner's case is that no notice was validly served on him under Order 21 Rule 66 C.P.C. when the sale was directed. Even in the proclamation of sale Ex. C. 2 only the decree-holder's valuation and the court's valuation have been mentioned and his valuation and the encumbrance were not included therein. It appears after knowing the sale date, he sought for an adjournment of the sale and was asked to deposit some money towards the decree. The sale was finally held on 3-4-1963 and was knocked out in favour of the husband of the decree-holder for Rs. 501 in respect of the first item and for Rs. 1001 in respect of the second item. The petitioner contends that as (1) there was no notice under Order 21 Rule 66 C.P.C., (2) there was no proper tom tom of such sale, (3) there was no insertion in Ex. C. 2 of his valuation and (4) the property was knocked down for a ridiculously low price, the sale suffers from material irregularities and the petitioner is adversely affected by such a sale.

2. As regards the first objection that no notice under Order 21 Rule 66 C.P.C. was served on the petitioner, it has to be noted that the service in the instant case was effected by affixture consequent upon the refusal by the judgment-debtor. Both the courts below found, as a matter of fact, that such service was sufficient service. It must however be noted that due to the alleged refusal and consequential affixture, the courts below imputed the judgment-debtor with constructive notice under Order 21 Rule 66 and this conclusion was arrived at on a detailed examination of the oral evidence in the case. The main contention of the petitioner is that the attesting witnesses are not those ordinarily residing in the village in which the property is situate. Though at first sight this argument appears to be well with force, but in revision the matter cannot be successfully canvassed by the petitioner, because the factum of service is clearly a fact found concurrently by the courts below. The conspicuous event in this case is that if the judgment-debtor did not have such effective notice of sale it was well within his rights to apply for setting aside the ex parte order which accepted such service as good service. The judgment-debtor, however, did not file any such application to set aside the ex parte order. As regards the other contention that no proper tom tom can be said to have been effected by the decree-holder at or near the place of auction, it does not appear to me that the reasons given by the petitioner in this Court are in any way convincing to disturb the concurrent findings of fact of both the courts below.

3. But the contention of the judgment-debtor that the sale proclamation was defective in that the valuation of the judgment-debtor was not incorporated therein and such an inchoate and irregular sale proclamation cannot be the foundation of a legal and valid court or public sale, has considerable force. The trial court does not appear to have adverted to this material circumstance. The lower appellate court, however, held that there is nothing on record to show that the judgment-debtor gave any value for being mentioned in the sale proclamation and therefore it held that the sale is not vitiated and not liable to be set aside. I shall presently advert to the other main contention of the petitioner that by reason of the irregular proclamation resulting in an illegal sale, he has been considerably prejudiced in that the real market value of the property was not incorporated in the document which has to be circulated to the public to enable them to come and bid at the sale. What is the impact of Order 21, Rule 66 (2) (e) over a sale proclamation which is admittedly defective, in that there is a lacuna therein which relates to the absence of valuation of the judgment-debtor?

4. Before the above question is answered directly, it would be necessary to find out as to what is the purpose and intendment of the Civil Procedure Code in rescribing certain requirements which have to be found and publicly exhibited in a sale proclamation before any public sale is attempted. This aspect was considered in a different light by Veeraswami J. in Ramalingam Pillai v. Sankara Iyer, . That was a case which arose under circumstances

wherein the complaint was that the notice under Order XXI, Rule 66 C.P.C. was not served. There the learned Judge, agreeing with Panchapakesa Aiyar J. in Karunakaran Nair v. Chathu, 1956-1 Mad LJ 47 = (AIR 1956 Mad 231) held that if a proclamation is drawn up on inchoate and illegal material, and in any event on the basis of information which was either incorrect or untrue, then the resultant sale would be a nullity and it will not be a case of mere irregularity. No doubt, this was the ratio in the above case. But applying the same test to the particular facts of the case before me, it appears to me that if a sale proclamation does not contain a mandatory and a statutory requirement, the mere fact that constructive notice of sale and notice under Order XXI Rule 66 C.P.C. is imputed to the judgment-debtor by an a priori consideration of the facts, it would nevertheless be a sale held on a proclamation which was not drawn up in accordance with law. Learned counsel for the petitioner rightly contends that Order XXI Rule 66 (2) (e), which is a particular and peculiar amendment introduced in Madras State, has to be strictly enforced and if as a fact there is any defect in the sale proclamation in that it does not disclose the two valuations, that is, both of the decree-holder and that of the judgment-debtor, which are obligatorily to be described, then the proclamation suffers from, an irregularity which cannot be cured even by acquiescence.

5. A Division Bench of this court in Nagendra Iyer v. Varadaraja Pillai, was of the view that the court has to give, under Order XXI rule 66 (2) (e) C.P.C. the value of the property as, stated by the decree-holder and the judgment-debtor, and added;

"Where this rule is not complied with and the upset price given in the proclamation is the one given by the decree-holder which on the evidence is found to be grossly inadequate, and it reveals a clear intention on the part of the decree-holder to conceal from the intending bidders the true value of the property and thereby, dissuade a good many of them from taking part in the sale, in such circumstances the sale is clearly vitiated and liable to be set aside",

In this case the judgment-debtor originally valued the property at Rs. 6000. When he attempted to substantiate before the lower appellate court that the value as stated by the decree-holder is inadequate and considerably low, he was not allowed to do so. His application for reception of additional evidence was summarily rejected by the lower appellate court. The lower appellate court, while refusing to receive additional evidence, observed:

"Further, even if the documents are received, they are not sufficient to rebut the evidence already on record".

This appears to me to be a conclusion without any consideration. The value as evaluated by the judgment-debtor at the tune of the attachment before judgment proceeding was nearly six times the value as stated by the decree-holder. Thus, the value put in the proclamation is ridiculously low. At any rate, an opportunity was given to the judgment-debtor to establish that the decree-holder's valuation was designedly low. The insistence of the decree-holder to hold on to such a value which is obviously self-serving and to his ultimate advantage, savours of lack of bona fides. Honesty is a duty of universal obligation. The fact that the value of both the items of property is depicted as low, might prejudice the minds of buyers about the quality of the land. In the words of the Privy Council in Sadatmand Khan v. Phul Kuar, 25 Ind App 146 (PC):

"It is a mis-statement of the value of the property which is so glaring in amount that it can hardly have been made in good faith, and which, however, it came to be made, was calculated to mislead possible bidders and to prevent them from offering adequate prices or from bidding at all."

Thus, therefore, the value as given by the decree-holder is misleading and has caused considerable prejudice to the judgment-debtor, and without hesitation we can conclude that the sale is thus vitiated.

6. Mr. K. Raman appearing for the decree-holder however contends that even though the sale proclamation did not Include the price of the judgment-debtor the sale is not vitiated for two reasons (i) the judgment-debtor did not make any attempt to give his price at the appropriate time for the same to be mentioned in the proclamation of sale, (ii) there is a waiver of such an irregularity, even if it is one,

7. Regarding the first objection, the instant case is one in which the judgment-debtor was deemed to have been served, Therefore he had no real or effective opportunity to state the valuation of the property, The inclusion of the judgment-debtor's valuation in the proclamation is not a rule of mere procedure, but one of substance. This is a mandatory requirement. There is therefore no force in the first contention. The second contention which closely follows the first requires a serious consideration. This is mainly rested on the ground that the judgment-debtor applied for postponement of the sale after he came to know of it. In this case, notice under Order XXI rule 66 was affixed and the evidence is that the judgment-debtor refused. But the case of the judgment-debtor is that he was not present in the house on that day and the note made by the process server that he refused summons is incorrect and he even states that it is false. But sitting in revision I am constrained to accept the finding of fact that notice was served under Order XXI Rule 66 on the judgment-debtor. But, in my view, the circumstances are suspicious and not beyond reasonable doubt.

It cannot with certainty be presumed that the affixture which was made by the process server in the instant case, which was attested by non-residents of the village, could have been done, or even if it was done, whether the version given by the decree-holder through his witnesses can be true. Suffice it, however, to say without further probing into the details of the evidence regarding such service, that though it has been held that the judgment-debtor should be deemed to have had notice or constructive notice of such service, yet, for all just and equitable purposes, it cannot be presumed that the judgment-debtor, at that point of time, had all the information about the defective proclamation of sale which propelled the public sale. In the words of the Privy Council in Marudanayagam Pillai v. Manickavasakam Chettiar, ILR 1945 Mad 601 at p. 607=(AIR 1945 PC 67 at p. 70).

"The efficacy of a plea of waiver by the appellant depends on the ability of the respondent to prove that the appellant knew the true facts from which an intention on his part to waive his right to object to a misstatement in the proclamation can be inferred".

No such proof has been let in this case by the respondents.

8. There is also a duty cast on the court to send out a completed sale proclamation containing details as required in law. It has also the duty to avail itself of all information from the records in court. In the attachment before judgment proceedings, the judgment-debtor has valued the property at Rs. 7000, This material was thus available. But the court has not adverted to such material information On its records and failed to discharge one of its statutory duties and thus failed to exercise its jurisdiction vested in it by law.

9. Learned counsel for the respondents strenuously stressed the plea of waiver by the judgment debtor to contend that the sale cannot be set aside. As already stated, the application for postponement of sale is pressed into service in support of this contention. No doubt certain observations of the Privy Council in Girdhari Singh v. Hurdeo Narain Singh, (1876) 3 Ind App 230 (PC) and in Arunachelam v. Arunachelam, (1888) ILR 12 Mad 19 (PC) were relied upon. Mr. K. Mohan appearing for the petitioner equally relied upon two other Privy Council decisions reported in Raja Shyam Sunder Singh v. Kaluram Agarwala, 1939-1 Mad LJ 147=(AIR 1938 PC 230) and ILR 1945 Mad 601=(AIR 1945 PC 67). I have already adverted to the decision reported in ILR 1945 Mad 601 = (AIR 1945 PC 67). In this case the two other decisions cited by the learned counsel for the respondents are referred to but yet the learned Law Lords laid down in no uncertain terms the rule that waiver can only be sustained, if the party against whom it is projected did have full knowledge of all the material facts put against him. This is not so in this case as the judgment, debtor was not personally served with the notice under Order XXI rule 66. There is no clinching evidence to show that the petitioner knew the true facts, to wit the absence of his valuation in the proclamation, from which a deliberate intention on his part to waive, his right to object to a misstatement in the proclamation can be fairly, legitimately and properly inferred. It is only such a state of affairs that could constitute, waiver, as estoppel must be certain to every intent and not to be taken by argument or inference. To the same effect are the observations of the Privy Council in 1939-1 Mad LJ 147 = (AIR 1938 PC 230):

"There is a distinction in law between waiver and admission; in the case of waiver a person is not to be held to have waived a right of which he was reasonably ignorant, but in the case of a representation or admission which is acted, on the party making it cannot plead ignorance unless it is induced by the other party, for, if he does not choose to enquire beforehand, he takes the risk of error".

The case cited by Mr. K. Raman, Vaidyalinga Pillai v. Chidambara Filial, ILR 1967 Mad 140 has no application to the facts of this case. There the judgment debtor stood by and allowed the sale to go on and Kailasam, J., held that he cannot be heard to set up a plea of misdescription in the sale proclamation. The other case cited by the learned counsel for the respondents, Pottareddi v. Karuppa Goundan, AIR 1935 Mad 150 is yet again one in which the judgment-debtor in spite of notice took no part in the setting of the proclamation and thereafter applied for adjournment of the sale. In those circumstances, Walsh, J. held that he is estopped from filing an application for setting aside such a sale.

10. In such instant case, the notice was not directly served. The court did not perform its duty to avail itself of the available material on record to complete the proclamation in all respects. The judgment debtor cannot be said to have had all information regarding the defective sale proclamation when he applied for adjournment. The application for adjournment is obviously made in an emergency to avert a sale and highly involuntary rather than a free act in exercise of one's volition being conscious of all the defects with which the proclamation was suffering.

11. I am satisfied that in this case the petitioner is not estopped from raising the plea that the proclamation is defective and thus there was a serious irregularity which goes to the root of the court sale. I have already found that the conduct of the decree holder coupled with the fact that the judgment debtor was not given a fair opportunity to prove the market value raises a considerable doubt whether the price paid is adequate.

In fact, by reason of the law and inadequate price the judgment debtor has been damnified considerably. This is a fit case in which the sale has to be set aside and accordingly it is set aside. The order of the lower court is consequently set aside and this civil revision petition is allowed. There will be no order as to costs.


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