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K. Krishnaswami Gounder Vs. Palani Gounder - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 277 of 1972
Judge
Reported inAIR1975Mad197
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 66(2)
AppellantK. Krishnaswami Gounder
RespondentPalani Gounder
Appellant AdvocateS. Nainar Sundaram and ;V. Nicholas, Advs.
Respondent AdvocateR. Mohan, Adv. for ;S. Ramalingam, Adv.
DispositionAppeal dismissed
Cases ReferredNaganna v. Venkatarayalu
Excerpt:
- - 3. the next objection of the judgment-debtor is that the sale proclamation has failed to comply with the requirement of order 21, rule 66, c. it is said that the failure to state the revenue payable by the land that was brought to sale is a material irregularity. 4. the next objection of the judgment-debtor, which is equally marked by a pompous legalism, is that the sale proclamation failed to state the judgment-debtor's value and is therefore vitiated by a material irregularity. in fact, notice was ordered twice but the redoubtable appellant somehow managed to evade service and the court, after being satisfied that service was sufficient, set the appellant ex parte and granted permission to the decree-holder to bid at the auction. i therefore hold that the order granting..........since the appeal was pending.2. the first objection of the appellant is that there has been no sale proclamation effected at all, but it is found that p. w. 1, the appellant, has signed ex. b-l, the sale proclamation. in the course of the cross-examination, p. w. 1 was forced to admit that he has signed the endorsement of service made by the process server upon ex. b-l. the endorsement shows that on 26-9-1971, the process server went to the land of the judgment debtor, affixed the sale proclamation to that land and made a proclamation by torn tom to the effect that between 11 a. m. and 5 p. m. on 10-11-1971, the particular property will be sold in court auction. the objection of the judgment-debtor that the sale is vitiated because there was no sale proclamation effected at all is.....
Judgment:

Maharajan, J.

1. This is an appeal preferred by the third judgment debtor in E. P.115 of 1971 against the order of the learned Subordinate Judge of Coimbatore, dismissing his application under Order 21, Rule 90 and Section 151, Civil P. C. to set aside a judicial sale held in E. P. 115 of 1971 on 10-11-1971. The appellant, who appears to be a veteran litigant, has been keeping the decree holder at bay at every stage by raising all conceivable technical objections. The appellant, who was examined as P. W. 1, admitted that he came to court two days before the sale and learnt that his properties were being brought to sale. In fact even before the present execution petition was filed, the decree-holder filed two execution petitions, E. Ps. 336 of 1968 and 246 of 1969, both for sale of the properties. While those E. Ps. for sale were pending, the appellant applied for adjournment of sale on the ground that he had preferred an appeal in the High Court against the decree passed in the suit and the sale should be adjourned since the appeal was pending.

2. The first objection of the appellant is that there has been no sale proclamation effected at all, But it is found that P. W. 1, the appellant, has signed Ex. B-l, the sale proclamation. In the course of the cross-examination, P. W. 1 was forced to admit that he has signed the endorsement of service made by the process server upon Ex. B-l. The endorsement shows that on 26-9-1971, the process server went to the land of the judgment debtor, affixed the sale proclamation to that land and made a proclamation by torn tom to the effect that between 11 a. m. and 5 p. m. on 10-11-1971, the particular property will be sold in court auction. The objection of the judgment-debtor that the sale is vitiated because there was no sale proclamation effected at all is thus found to be false, frivolous and vexatious.

3. The next objection of the judgment-debtor is that the sale proclamation has failed to comply with the requirement of Order 21, Rule 66, C. P. C. in two respects. In the first place, it is said that there is no compliance with the requirement of Order 21, Rule 66, Sub-clause (2) (b) which requires the proclamation to specify the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or part of an estate paying revenue to the Government. It is said that the failure to state the revenue payable by the land that was brought to sale is a material irregularity. I am unable to agree that Sub-clause (b) has any reference to land held in ryotwari tenure. Learned counsel for the appellant would cite, Naganna v. Venkatarayalu, , in support of the proposition that non-mention of the revenue payable even by a land held under ryotwari tenure could be a violation of Order 21, Rule 66 (2) (b). A reference to the ruling shows that the property that was brought to sale in that case was the North West Vallur estate consisting of about 34 villages in Kistna and West Godavari districts paying an annual peshkush of Rs. 42000. This shows that the requirement of Clause (b) of Order 21, Rule 66 (2) was regarded by the Privy Council as being applicable to an estate or part of an estate paying revenue to the Government and notto a land which is held in ryotwari tenure and in respect of which only kist is payable and not peshkush.

4. The next objection of the judgment-debtor, which is equally marked by a pompous legalism, is that the sale proclamation failed to state the judgment-debtor's value and is therefore vitiated by a material irregularity. It may be noted that in the present execution petition notices were issued to appellant twice and evidently because he tried to evade service, substituted service was ordered and service was held by the court to be sufficient and the appellant was set ex parte and the execution proceedings proceeded with. The appellant did not file any counter to this execution petition stating the valuation of the property that was being brought to sale. The Madras amendment of Sub-rule (2) of Order 21, Rule 66 reads as follows-

'The terms of such proclamation shall be settled in court after notice to the decree-holder and judgment debtor, except in cases where notices have already been served under Order XXI, Rule 64 and such proclamation shall state the time and place of sale and specify as accurately as possible ............(a) ......... (b) ......... (c) ......... (d) .........(e) the value of the property as stated--(i) by the decree-holder; and (ii) by the judgment-debtor.'

It is clear from the language of this rule that the value of the property as stated by the judgment-debtor can be specified by the court only if the judgment-debtor appears in the execution proceedings and states the value of the property as per his estimate. Learned counsel for the appellant says that two years prior to the filing of this execution petition, While E. P. 246 of 1969 was pending, he filed an application to set aside an ex parte order passed against him and in the course of an affidavit filed in support of that application he had stated that the property that was being brought to sale was worth Rs. 50,000 and that the court ought to have looked into the prior records and inserted in the sale proclamation the statement of the judgment-debtor as regards the value of the property. I am entirely unable to accept this proposition. If the judgment-debtor fails to appear in an execution petition and fails to state in that execution proceedings his estimate of the value of the property, it is no part of the duty of the court to make a research into the prior proceedings or to rummage the records relating to any other proceedings between the parties in order to find out if the judgment debtor had stated the value of the property. To say that if the court fails to perform this impossible duty of conducting a research into the prior proceedings and finding out if the judgment-debtor has stated his value in those proceedings, it should be held guilty of a material irregularity is, in my view, to make a mockery of the technicalities of law without any regard for the realities in which the executing courts are called upon to function. I may also add that even if it is regarded as a material irregularity, there is no proof that as a result thereof the appellant has suffered any injury.

5. It is lastly contended that the decree-holder obtained permission to bid and set off behind the back of the appellant and consequently the sale must be set aside on the ground of this material irregularity. The records show that notice was in fact ordered in pursuance of the application for permission filed by the decree-holder. In fact, notice was ordered twice but the redoubtable appellant somehow managed to evade service and the Court, after being satisfied that service was sufficient, set the appellant ex parte and granted permission to the decree-holder to bid at the auction. I therefore hold that the order granting permission to bid is not the result of any violation of any mandatory provision of law but is perfectly in keeping with the provisions of Order 21, Rule 66, Civil P. C.

6. The result is that every one of the objections raised by the judgment debtor fails. I confirm the order of the Court below and dismiss the appeal with costs.


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