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E. K. M. K. Nawabjan Vs. Krishnan Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Reported in(1977)1MLJ382
AppellantE. K. M. K. Nawabjan
RespondentKrishnan Chettiar and ors.
Excerpt:
.....service as contemplated by order 5, rule 17. the learned counsel for the appellant would however contend that in a case like this where one's property is sought to be sold, there should be personal service or service through registered post to ensure that he becomes aware of the execution proceedings. it is well-established that an execution sale of a property cannot be set aside merely on the ground that the price fetched by the sale is somewhat low or that it will fetch a higher price if resale is ordered. 60,000. i cannot therefore say that the sale has fetched such a low price that the sale has to be set aside under order 21, rule 19. the result is all the contentions advanced by the learned counsel for the appellant fail......had filed e.a. no. 98 of 1973 to set aside the said sale on three grounds (1) that there was no proper service of notice on him before the sale was ordered; (2) that there was no proper publicity given to the proposed sale of the property; (3) that the property which is worth more than rs. 60,000 was sold only for a sum of rs. 27,700 which was resulted in considerable loss and prejudice to him. in the counter-affidavit filed by the decree holder it has been stated that the appellant was aware of all the proceedings both prior and after the decree that he was served with notice at every stage, and that he wantonly absented himself from attending court, that there was proper proclamation and publication and that the property being an old building has fetched a proper price.3. the court.....
Judgment:
ORDER

G. Ramanujam, J.

1. This appeal arises out of an order of the lower Court rejecting the appellant's petition under Order 21, Rule 90 of the Code of Civil Procedure for setting aside the sale of a house held on 14th August, 1972 in execution of a decree in O.S. No. 445 of 1969.

2. The 2nd respondent obtained a mortgage decree against the appellant and respondents 3 and 4 in O.S. No. 448 of 1969 and to realise the decree amount he filed E.P. No. 33 of 1972 for sale of the property. The property was actually sold on 14th August, 1972 for Rs. 27,700. The appellant who was the 3rd defendant in the suit had filed E.A. No. 98 of 1973 to set aside the said sale on three grounds (1) that there was no proper service of notice on him before the sale was ordered; (2) that there was no proper publicity given to the proposed sale of the property; (3) that the property which is worth more than Rs. 60,000 was sold only for a sum of Rs. 27,700 which was resulted in considerable loss and prejudice to him. In the counter-affidavit filed by the decree holder it has been stated that the appellant was aware of all the proceedings both prior and after the decree that he was served with notice at every stage, and that he wantonly absented himself from attending Court, that there was proper proclamation and publication and that the property being an old building has fetched a proper price.

3. The Court below after considering the oral and documentary evidence adduced by either of the parties has held that the appellant should be taken to have been duly served, that there was due and proper publicity and that the property is not shown to have fetched a low price. On the question whether there was due service of notice on the appellant, the lower Court has stated that as the other defendants, who are the brother and mother of the appellant, had been served with notice and they had appeared in Court, it should be taken that the appellant also should have been served with notice in the execution petition. I do not see how the lower Court can assume due service on the appellant merely because notices have been served on his brother and mother, the other defendants in the suit. There cannot be any presumption that if one defendant is served the other defendant should be deemed to have been served. Though the said reasoning is not sound the Court below has also found that there was service of notice on the appellant by affixture.

4. The learned Counsel for the appellant points out that mere affixture of notice cannot be taken to be a proper service. But in this case the report of the process server as well as his evidence before Court as R.W. 2 indicate that notice was offered to the appellant at his residence and he refused to receive the same after going through the notice. The question therefore is if there is a refusal on the part of the appellant to receive a notice tendered by the process server, the subsequent affixture of the notice on the residential premises can be taken to be a sufficient compliance with the statutory provision regarding the service of notice. Order 5, Rule 17, Civil Procedure Code, deals with the procedure to be followed when the defendant refuses to accept service. That Rule provides that where the defendant refuses to accept service of notice and sign the acknowledgment, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides. In view of the said Rule, the affixture of the notice of the execution petition on the appellant's residence on his refusal to accept the notice appears to be a due service as contemplated by Order 5, Rule 17. The learned Counsel for the appellant would however contend that in a case like this where one's property is sought to be sold, there should be personal service or service through registered post to ensure that he becomes aware of the execution proceedings. It is not possible for me to accept such submission. So long as the statutory provision contemplates service by affixture when the party reluses to receive the summons, it is not possible to say that there has been no proper service.

5. As regards the second contention that there was no due and proper publicity in proclaiming and conducting the sale, the lower Court has found that the sale was proclaimed by torn torn and that there were as many as four bidders. The learned Counsel for the appellant does not dispute the fact that there was proclamation by tom tom, but what he contends is that in addition, to proclamation by tom tom there should have been wide publicity regarding the sale either in the form of bit notices or by publication in any of the local dailies. Here again, I am not inclined to accept the submission of the learned Counsel. Order 21, Rule 67 sets out the mode of publishing the proclamation of sale and it says--every proclamation for sale shall be published as nearly as may be in the manner prescribed by Rule 54 (2). Sub-rule (2) of Rule 67 contemplates the publication in the official gazette or local newspaper or both as a mode of publishing the proclamation of sale, but that mode has to be adopted only when the Court so directs. It is not the appellant's case that in this case the executing Court had directed publication either in the official gazette or in the local newspaper or both by any specific order. In the absence of such an order by the executing Court, the manner of publishing the proclamation can only be under Rule 54 (2). Rule 54 (2) contemplates proclamation at some place on or adjacent to the property sought to be attached or sold by beat of drum or other customary mode. It also provides for a copy of the order being affixed on a conspicuous part of the property and in a conspicuous part of the Court house. In this case it has not been shown by the appellant that the mode contemplated by Rule 54 (2) has not been complied with and it is not even the case of the appellant that Order 21, Rule 54 (2) has not been followed. His case is that a still more elaborate procedure should have been, followed in this case. 1 do not see how a Court can suggest a more elaborate method when the method contemplated by the statute has been followed. It is true the executing Court has power to direct proclamation in the official gazette or the local newspaper. But the lower Court was not approached for such an order at least by respondents 3 and 4 who were defendants 1 and 2 in the suit and who were represented by counsel in the executing Court. I do not therefore see any error in the modes of publication of proclamation, adopted in this case.

6. The last ground relates to the value of the property. It is said that the property was worth more than Rs. 60,000 but it has been sold only for Rs. 27,700 and that therefore the sale has to be set aside. It is well-established that an execution sale of a property cannot be set aside merely on the ground that the price fetched by the sale is somewhat low or that it will fetch a higher price if resale is ordered. Apart from saying that the property is likely to fetch more than Rs. 60,000 no concrete material has been placed before the Court to show that the property is really worth of Rs. 60,000. I cannot therefore say that the sale has fetched such a low price that the sale has to be set aside under Order 21, Rule 19. The result is all the contentions advanced by the learned Counsel for the appellant fail. The appeal is dismissed. No costs. No leave.


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