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Pandurangan and anr. Vs. Dasu Reddy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.A. No. 3 of 1971
Judge
Reported inAIR1973Mad107
ActsCode of Civil Procedure (CPC), 1908 - Sections 47, 65, 104 and 151 - Order 21, Rules 89, 90 and 92 - Order 34, Rule 5;
AppellantPandurangan and anr.
RespondentDasu Reddy
Cases ReferredIn Nagendra Iyer v. Varadaraja
Excerpt:
.....- judgment debtor-respondent filed application under order 21 rule 90 to set aside court auction sale - district judge held that in sale proclamation no encumbrances have been mentioned that revenue assessed upon land has not been noted - value mentioned by judgment debtor in his counter has not been mentioned - decree holder's valuation was not given - proclamation suffers from material irregularities - district judge held that judgment debtor has been damnified by such sale - such sale has to be set aside under order 21 rule 90. - - , has clearly found the substantial injury caused to the judgment-debtor in the holding of the court auction sale. the failure to announce the sale by beat of tom-tom and other material irregularities and fraud in publishing and conducting the sale...........the judgment debtor, respondent herein, filed an application in e. a. 669 of 1969 under order xxi. rule 90 civil p. c. to set aside the court auction sale held on 25-6-1969. it was alleged in that application that the property worth about rs. 7,000/- has been knocked down for rs. 701/-, that no proper advertisement had been made before the property was brought to sale, that fraud was played upon the court in order to make the property be knocked down for a low price and that there was no need to furnish security to set aside the sale. the decree-holder, second appellant herein, filed a counter stating that there were no merits in the application and that the same had been filed with a view to protract the execution proceedings and delay the realization of the decree amount. e. a. 669 of.....
Judgment:

1. The auction purchaser is the first appellant. The decree holder is the second appellant. The judgment debtor, respondent herein, filed an application in E. A. 669 of 1969 under Order XXI. Rule 90 Civil P. C. to set aside the Court auction sale held on 25-6-1969. It was alleged in that application that the property worth about Rs. 7,000/- has been knocked down for Rs. 701/-, that no proper advertisement had been made before the property was brought to sale, that fraud was played upon the Court in order to make the property be knocked down for a low price and that there was no need to furnish security to set aside the sale. The decree-holder, second appellant herein, filed a counter stating that there were no merits in the application and that the same had been filed with a view to protract the execution proceedings and delay the realization of the decree amount. E. A. 669 of 1969 was heard by the District Munsif, Chingleput, who held that the proclamation of sale and the sale were in order and thus dismissed of the application. Aggrieved by the order of the District Munsif, the judgment-debtor preferred C. M. A. 13 of 1970 before the District Judge, Chingleput. The District Judge held that in the sale proclamation no encumbrances have been mentioned, that the revenue assessed upon the land has not been noted, that the value mentioned by the judgment-debtor in his counter to E. A. 224 of 1969 has not been mentioned, that even the decree-holder's valuation was not given and that the proclamation suffered from material irregularities. Thus he allowed the appeal. Aggrieved by the decision of the District Judge, Chingleput, the auction purchaser and the decree-holder have preferred this civil miscellaneous second appeal.

2. Thiru K. M. Srinivasan, the learned counsel for the appellants, submitted that there cannot be any setting aside of the sale under O. XXI, R. 90, Civil P. C. in view of the fact that the sale has taken place and confirmation of the sale has also been made with the issue of a sale certificate and possession being handed over to the auction purchaser. The learned counsel has also stated that there is no substantial injury caused to the judgment-debtor for setting aside the sale and that the District Judge has taken extraneous matters into consideration in setting aside the Court auction sale. It has also been further submitted by the learned counsel that there is no allegation made in the application filed under Order XXI, Rule 90, as to the substantial injury alleged to have been caused to the judgment-debtor.

3. Thiru M. V. Krishnan, the learned counsel for the judgment-debtor, supported the judgment of the District Judge and submitted that there is a clear reasoning given by the District Judge for his setting aside the Court auction sale and that there is no difficulty in coming to the conclusion that the District Judge who disposed of the C. M. A., has clearly found the substantial injury caused to the judgment-debtor in the holding of the Court auction sale. The learned counsel for the respondent also submitted that this appeal is not maintainable since the order passed by the District Munsif and the one by the District Judge arose out of an application under Order XXI, Rule 90 and that the order passed under Order XXI, Rule 90 has to be construed to be one passed under O. XXI, R. 92 and hence the same comes under Order XLIII. Civil P. C. and as such there cannot be any second appeal against the order in C. M. A. 13 of 1970.

4. Thiru K. N. Srinivasan, in support of his contention that a sale once confirmed, cannot be set aside cited the decision in Bojjanna v. Kistappa : AIR1947Mad268 . In that decision, a Bench of this Court has stated that a Court has no power under Section 151. Civil P. C. to cancel a sale in execution after it has been confirmed, on the ground of a fraud on the court in the matter of the valuation of the property sold, which fraud had not been the subject-matter of an application under Order XXI, Rule 90, proved within the time allowed. The court further held that the Code having given a specific remedy, the court cannot be presumed to have an inherent power overlapping or running parallel to the procedure laid down in the code. But as far as the present case is concerned, this decision has no relevance to the proposition stated by the learned counsel for the appellant.

5. The learned counsel also read Section 65. C.P.C. to support his contention. Section 65 makes it clear that the property sold becomes vested with the purchaser from the time when the property is sold and not fro the time when the sale becomes absolute. I do not think there is any relevance in quoting this section for the proposition set up by the learned counsel for the appellant.

6. Mr. K. N. Srinivasan, the learned counsel for the appellant, cited the decision in Janakraj v. Gurdial Singh, 1968 1 SCJ 222 wherein the Supreme Court took up for determination the question as to whether a sale of an immovable property in execution of a money decree ought to be confirmed when it is found that the ex parte decree which was put into execution has been set aside subsequently. That was a case in which subsequent to the court auction sale the decree was reversed by the appellate court. The judgment-debtor in that case did not take out any application under Order XXI, Rule 89 or 90, Civil P. C., to set aside the auction sale. In those circumstances, the Supreme Court held that it is the duty of the court to protect the auction purchasers irrespective of the fact that the decree has been reversed by the appellant court. In the view, the Supreme Court found that the sale has to be confirmed. But in that case it has been observed that the Civil Procedure Code 1908, makes ample provision for the protection of the interest of the judgment-debtor who feels that the decree ought not to have been passed against him and that the judgment debtor not having resorted to the provisions of Order XXI, Rule 89 it must be held that the auction purchaser was entitled to a confirmation of the sale notwithstanding the fact that after the holding of the sale the decree had been set aside. Therefore, it is clear that the judgment debtor's right to set aside the sale is always reserved under Order XXI, Rules 89 and 90, Civil P. C. Hence the above decision of the Supreme Court cannot be of any avail to the appellant.

7. The decision reported in Radhey v. Shyam Behari : [1971]1SCR783 cited by Thiru K. N. Srinivasan, supports the case of the judgment debtor (respondent), inasmuch as the right to set aside the sale under the provisions of Order XXI, Rule 90 are always available. The decision, after setting out the rights of the judgment debtor proceeds to state that the decision under Order XXI, Rule 90. Civil P. C. by a single Judge is a 'judgment' within the meaning of clause 10, Letters Patent of the Allahabad High Court and as such Letters Patent Appeal against that order was maintainable.

8. Baliram Singh v. Narasingdas, 45 MLJ 403 AIR 1923 PC 93 deals with Order XXI, Rule 90, Civil P. C. and stated that to set aside a sale substantial injury must be proved. There is absolutely no dispute with regard to this proposition since the proviso to Order XXI, Rule 90 itself mentions the same.

9. In the application by the judgment debtor under Order XXI, Rule 90, Civil P. C., there is a clear averment in paragraph 4 of the application to the effect that there was no proper advertisement for the sale, that due to improper advertisement the sale was not known to many of the villagers, that since the auction was held fraudulently the property, which would have fetched more than Rs. 7,000 has fetched a very low amount of Rs. 701 and that the same should be set aside on that account. The District Judge, no doubt, in many parts of his judgment, has adverted to the defects which were anterior to the publication and conducting of the sale as contemplated under Order XXI, Rule 90; but he has definitely taken into consideration the very low price fetched in the auction; the failure to announce the sale by beat of tom-tom and other material irregularities and fraud in publishing and conducting the sale. The District Judge has also given a finding to the effect that the judgment debtor has been damnified by the sale of the property for a low and inadequate price. In the teeth of such a clear finding. I do not think that the other discussions made by the District Judge regarding the defects in the proclamation of sale will in any way affect the order. There is a clear averment in the application under Order XXI, Rule 90 that the sale has been fraudulently conducted and there is a clear finding by the District Judge that the judgment debtor has been damnified by such sale.

10. Thiru K. N. Srinivasan cited the decisions in Natarajan v. Chandulal Amarchand : (1971)1MLJ474 . Ramalingam Pillai v. Sankara Iyer. : AIR1964Mad424 ; Official Receiver v. P. R. M. and Co. : AIR1963Mad201 and Ramaswami Gounder v. Muthuvel Gounder : (1959)2MLJ212 and argued that a second appeal will lie in view of the fact that there was a clear allegation of want of notice. Natarajan v. Chandmul Amarchand : (1971)1MLJ474 according to Thiru K. N. Srinivasan, clearly states that a sale without notice is a nullity and as such the application filed can be construed as one under Section 47, Civil P. C. If it is one under Section 47, Civil P. C., Thiru K. N. Srinivasan stated that a second appeal will lie following the above decisions. Nevertheless, the learned counsel submitted that in view of the fact that the sale certificate has been issued, there is no question of setting aside the sale. Thus the argument of Thiru K. N. Srinivasan proceeded on the footing that the application filed by the judgment debtor must be considered as one under Sec. 47. Civil P. C. No doubt, he started his argument by stating that if the sale has been confirmed and a sale certificate issued, there is no question of setting aside the sale under Order XXI, Rule 90. Civil P. C. I am of the view that an application will lie under Order XXI, Rule 90, to set aside the sale evenafter the sale has been confirmed and sale certificate issued. The decisions in : [1967]2SCR77 do not lend any support to the proposition advanced by Thiru K. N. Srinivasan. I have discussed these cases supra for the purpose of fortifying my view that an application under Order XXI, Rule 90, Civil P. C. will lie to set aside sale even in cases where the sale has been confirmed and the sale certificate issued.

11. In Ramathal v. Nagaratnammal 1967 1 MLJ 260 a Bench of this court held that restoration of an application under Order XXI, Rule 90, Civil P. C. automatically operated to vacate or render ineffective the earlier order confirming the sale held in pursuance of a final decree in a mortgage action. In Nagendra Iyer v. Varadaraja : AIR1965Mad198 , a Bench of this court has confirmed the decision of a single Judge and held that there was gross under-valuation of the property, that the price realized was far below the market price and thereby a substantial injury was caused to the judgment debtor and on that ground set aside the sale. Considering the facts in that case, it is clear that the price fetched by the sale of the property in that case was far below the market price and thereby a substantial injury was caused to the judgment debtor. Taking into a consideration the above decision, there is no difficulty in coming to the conclusion that the sale in the present case has to be set aside under Order XXI, Rule 90, Civil P. C. in view of the finding of the District Judge that the judgment debtor has been damnified by such a sale.

12. In view of my finding that the sale has to be set aside, the question as to the maintainability of the civil miscellaneous second appeal assumes little importance. The question as to whether an order passed under Order XXI, Rule 90. Civil P. C. will strictly come under the 'appealable orders' under Order XLIII attracting the prohibition under Sec. 104, Civil P. C. is an arguable question which I leave open.

13. The civil miscellaneous second appeal is dismissed but, without costs.

(This appeal having been posted for being mentioned the court made the following Order:(19-1-1972)

14. I delivered the judgment in the above appeal as early as 17-12-1971. Mr. K. N. Srinivasan learned counsel for the appellant, has placed with matter again on a letter filed by him for the purpose of certain clarification. He wants to delete paragraph 13 of the lower appellate court judgment which states that the judgment debtor can deposit the entire amount under Order 34, Rule 5, Civil P. C. before the trial court. The lower appellate court's order further gives certain relief's on such deposits. Sri M.V. Krishnan the learned counsel for the respondent correctly contends that there is absolutely no ground taken for this deletion in the grounds of appeal filed by the appellant herein. I am not prepared to express any opinion with regard to the observation made by the lower appellate court in paragraph 13 of its judgment. It is sufficient to dispose of the present contention on the ground that the appellant in the above civil miscellaneous second appeal has not taken up any ground regarding the same in his grounds of appeal. In that view, there is no need to change any portion of my judgment rendered in C. M. A. No. 3 of 1971 on 17-12-1971.

15. Order accordingly.


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