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K. Krishnaswami Pillai Vs. the Kumbakonam City Union Bank Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1979)1MLJ180
AppellantK. Krishnaswami Pillai
RespondentThe Kumbakonam City Union Bank Ltd. and ors.
Cases ReferredDhiredra Nath Gorai v. Sudhir Chandra Ghosh
Excerpt:
- .....the said execution petition, but he remained ex parte. since the appellant remained ex parte the sale proclamation was settled in his absence. while settling the sale proclamation, the upset price was fixed at rs. 1,30 000 in the first instance and the sale was held on 1st august, 1973 since there were no bidders, on an application made by the decree-holder, upset price was reduced to rs 90,000. even for that upset price, there were no bidders. therefore, the upset price was again reduced to rs. 60,000 and the sale was posted on 24th october, 1973. ultimately, the property was sold on 24th october, 1973 and the second respondent had purchased the property for a sum of rs. 90,000. thereafter, the appellant came forward with an application to set aside the sale of the mortgaged property.....
Judgment:

G. Ramanujam, J.

1. This civil miscellaneous appeal arises out of an order passed by the lower Court dismissing the application to set aside a sale in execution, held on 24th October, 1973, filed by the appellant under Order 21, Rule 90, read with Section 47 of the Code of Civil Procedure.

2. The appellant herein is the judgment-debtor in O.S. No. 387 of 1971 on the file of the lower Court. In the said suit a mortgage decree was passed for a sum of Rs. 43 000 and odd. In execution of the said mortgage decree the mortgaged properties were brought to sale in E.P. No. 338 of the 1972. The appellant-judgment-debtor was served with notice of the said execution petition, but he remained ex parte. Since the appellant remained ex parte the sale proclamation was settled in his absence. While settling the sale proclamation, the upset price was fixed at Rs. 1,30 000 in the first instance and the sale was held on 1st August, 1973 Since there were no bidders, on an application made by the decree-holder, upset price was reduced to Rs 90,000. Even for that upset price, there were no bidders. Therefore, the upset price was again reduced to Rs. 60,000 and the sale was posted on 24th October, 1973. Ultimately, the property was sold on 24th October, 1973 and the second respondent had purchased the property for a sum of Rs. 90,000. Thereafter, the appellant came forward with an application to set aside the sale of the mortgaged property held on 24th October, 1973 on the following six grounds : (1) The price fetched is too low. (2) The required details as contemplated by Order 21, Rule 66, C.P.C. had not been set out in the sale proclamation (3) There has been no due and proper publication of the sale. (4) here has been collusion between the decree-holder and the purchaser in the purchase of the property for a sum of Rs. 90,000. (5) The reduction of upset price from Rs. 90,000 to Rs. 60,000 without notice to the petitioner is irregular and, therefore, it vitiates the sale. (6) The judgment-debtor's valuation has not been mentioned in the sale proclamation.

3. The first respondent decree-holder and the Court-auction-purchaser both resisted the appellant's application for getting aside the sale contending that the price fetched at the Court auction is quite fair and reasonable, that all the requisite details had been given in the sale proclamation, that there has been due and proper publication of the sale proclamation, that there was no collusion between the decree-holder and the Court-auction-purchaser as alleged by the appellant and that the allegation of non-service of notice for reduction of the upset price has not been alleged even in the petition for setting aside the sale.

4. The parties adduced evidence in respect of their respective contentions. The lower Court, after due consideration of the rival contentions of the parties, held that the appellant-judgment-debtor has not established that the price of Rs. 90,000 fetched in the Court auction sale is not the proper price for the property sold, that the materials produced by the appellant for estimating the value of the property, sold indicate that the value can be Rs. 84,000 and that there are no other materials to show that the price of Rs. 0,000 fetched in the auction is net a fair or real value of the property. As regards the appellant's contention that there has been no due and proper publication of the proclamation of the sale, the lower Court finds that there has been due publication and there is no justification for the appellant's complaint about the lack of due publicity. On the question of alleged collusion between the decree-holder and the Court-auction-purchaser, the lower Court specifically finds that the collusion alleged has not been proved and the appellant has not adduced any material to substantiate the plea of collusion. On the allegation that the judgment-debtor's valuation has not been given in the sale proclamation, the lower Court has taken the view that the appellant remained ex parte even though he was served with notice of the execution petition that he has come into the picture only after the sale had taken place and that so long as he has not chosen to come on record and give his valuation, he cannot complain that his valuation has not been mentioned in the sale proclamation.

5. As regards the allegation that the upset price has been reduced from Rs. 90,000 to Rs. 60 000 without any notice to the appellant the lower Court finds after perusal of the endoraements made on the application for reduction of the upset price that no notice has been ordered to be served en the appellant before reducing the upset price from Rs. 90,000 to Rs. 60,000. The Court below however holds that in the application for setting aside the sale, the non service of notice for reduction of the upset has not been raised as a ground of objection and that therefore, in the absence of an averment in the petition, it must be deemed that the appellant has waived the notice. It is also found by the lower Court that the appellant was present at the time of the auction and he has also signed the sale proclamation wherein the upset price has been stated as Rs. 60,000 as against the upset price of Rs. 90,000 fixed earlier. The appellant did not raise any protest at the time of the sale, nor did he make it a grievance in the application far setting aside the sale. In those circumstances, the lower Court felt that he can no longer be heard to say that the sale is invalid on account of the absence of notice to him in E.A. No. 1129 of 1973 in which the upset price was reduced from Rs. 90,000 to Rs. 60,000

6. On this aspect, the learned Counsel for the appellant contends that non-service of notice on the judgment-debtor before the upset price once fixed is reduced, will clearly be an irregularity as per the Madras amendment to Order 21, Rule 66, C.P.C. In support of this cortention learned Counsel refers to the decision of Ismail J., in S.N. Skamsuddin v. M.K. Poyyamani 1973 T.N.L.J. 398 the gist of which is reported. In that case also, the upset price fixed by the Court was reduced without notice to the judgment-debtor. The judgment debtor immediately filed a revision petition before this Court for setting aside the order reducing the upset price. The learned Judge held that as the rules themselves now impose a duty en the executing Courts to fix the upset price and mention it in the sale proclamation, once the upset price is fixed and the same forms part of the sale proclamation settled after notice to the judgment-debtor, no material alteration in the sale proclamation can be made without notice to the judgment-debtor. In this view, the order reducing the upset price was set aside, en the ground of want of notice to the judgment-debtor. On the facts of that case, it is clear that originally the sale proclamation was settled in the presenc of the judgment-debtor, but the sate proclamation was subsequently altered by reducing the upset price without notiee to him. In those circumstance it was held that in the sale proclamation settled in the presence of the judgment-debtor no alteration should take place without notice to him. But such is not the case here. In this case, though notice of the execution petition was served on the appellant, he remained ex parte all through till the date of the salt, and even the original sale proclamation was settled in his absence. Therefore, the principle of that decision may not strictly apply to the facts of this case.

7. Assuming that the said decision were to apply here, that decision will support the appellant only to the event that there has been material irregularity, in that the notice of application for reduction of the upset price was not given to him. It is well-established that a mere irregularity without anything more cannot be taken advantage of by the judgment-debtor to have the sale set aside. The proviso to Order 21, Rule 90, G.P. Cede specifically says that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. Even assunming as contended by the learned Counsel for the appellant, non-service of the notice of the application for reduction of upset price from Rs. 90,000 to Rs. 60,000 amounted to an irregularity, that cannot be asid to have resulted in any injury to the judgment debtor. Though the upset price was reduced to Rs 60,00, the property really fetched a price of Rs. 90,000 which was the upset price before it was reduced to Rs. 60,000. Therefore, the appellant cannot now complain that merely because the upset price was reduced from Rs. 90,000 to to Rs. 60.000 the sale of the property for Rs. 90,000 has resulted in any substantial injury to him. If the petitioner has been diligent in resisting the execution petition and has approached this Court before the actual sale for setting aside the order reducing the upset price from Rs. 90 000 to Rs. 60,000 on the ground that no notice has been given to him, perhaps the Court might have set aside that order on the basis of the decision of Ismail, J. in the said case. But, here we are at a stage of setting aside the sale which had already taken place, and at that stage we are faced with the proviso to Order 21, Rule 90 C.P Code. We cannot, therefore, say that the non-service of the notice in the application for reduction of the upset price can be taken as a ground for setting aside the sale as urged by the learned Counsel for the appellant.

8. The only other contention that remains to be considered is the one based on the non-furnishing of material details in the sale proclamation as enjoined under Order 21, Rule 66(2)(f) C.P. Code. It is the case of the appellant that the sale proclamation on the basis of which the sale has been held in this case did not contain the details of the municipal-tax payable on the property and that such particulars are necessarily to be given under Order 21, Rule 66(2)(e) as applicable to Madras. That rule says that every other thing which the Court considers material for the purchaser to know in order to judge of the nature and value of the property should be stated in the sale proclamation as accurately as possible. It is not in dispute that the sale proclamation in this case did not contain the details about municipal-tax levied on the property. Clause (e) of Sub-section (2) of Rule 66 of Order 21, came up for consideration in Gajadhar Prasad v. Babu Bhakta Ratan : [1974]1SCR372 . The Supreme Court, after a review of the authorities as well as the amendments to Order 21, Rule 66(2)(e) held that the said rule requires the Court to state all the facts it considers material for a purchaser to judge the value and nature of the property himself, and that as such all the essential facts which have a bearing on the material question of the value el the property and which would assist the purchaser in forming his own opinion must be stated in the sale proclamation. According to the Supreme Court, the whole object of Older 21, Rule 66(2)(e) of the Code of Civil Procedure was to see that all the material particulars which are necessary to enable the purchaser to form his own opinion as to the value of the property and therefore, the Court should normally state the valuation given by both the the decree-holder as well as the judgment-debtor where they have both valued the property; and it may usefully state other material facts, such as the area of land, nature of rights in it, municipal assessment actual rents realised, which could reasonably be expected to affect valuation. The Supreme Court also made it clear that what could be reasonably and usefully stated succinctly in a sale proclamation has to be determined on the facts of each particular case and that no inflexible rules can be laid down on such a question. It is, no doubt, true that in the above decision, the Supreme Court has pointed out that it is desirable to give the municipal assessment also in the sale proclamation as it is one of the material facts to enable the purchaser to form his own value of the property, liven taking the municipal assessment as a material fact to be set out in the sale proclamation, as has been held by the Supreme Court in the above case, the non-furnishing of such a material fact will merely amount to an irregularity. It has to be remembered that Order 21, Rule 66(2)(e) does not specifically refer to the municipal assessment or the property-tax to be specifically stated in the sale proclamation. The Supreme Court has pointed out while considering as to what are the facts to be set out in the sale proclamation under Order 21, Rule 66(2)(e) that it may be useful to set out the municipal assessment also in the sale proclamation. But non-furnishing of the details as to the municipal assessment in the proclamation does not automatically make the sale a nullity. Even on the basis that it is a material fact which has to be given in the sale proclamation, as contended for by the appellant, the non-furnishing of a such a fact will merely amount to an irregularity.

9. As already stated, merely irregularity by itself is not a ground for setting aside the sale. The irregularity should be shown by the judgment-debtor to have re-ulted in substantial injury and it is only then the sale could be set aside. As a matter of fact, the Supreme Court has pointed out in Radhey Sheyam v. Shyam Behari Singh : [1971]1SCR783 that in order to set aside an auction sale, more proof of material irregularity such as the one under Rule 69 and inadequacy of the price realised in such a sale are not sufficient, that what has to be established by the judgment-debtor is that there was not only inadequacy of price, but that inadequacy was caused by reason of the material irregularity or fraud and that a nexus or connection has to be established between the inadequacy of the price and the material irregularity. In this case, the material irregularity pointed out is that the municipal-tax on the property has not not been noted in the sale proclamation and it is stated that the non-furnishing of such particulars in the sale proclamation has resulted in the property fetching a low price. Apart from asserting that the lack of particulars such as the municipal assessment in the sale proclamation has resulted in the property fetching a lesser price, there is no nexus or connection established between the alleged defect in the sale proclamation and the price fetched. Therefore, it is not possible for the Court to set aside the sale under Order 21, Rule 90, Civil Procedure Code, merely on the ground that the property-tax assessment has not been mentioned in the sale proclamation. As already pointed cut the petitioner was ex parte though he was duly served with the notice in the execution petition and all the proceedings in execution have gone on ex partei Therefore for all that has happened the appellant has to blame himself. If really he is interested in safeguarding his rights, he would have moved the Court then and there for issue of a proper sale proclamation containing all the details. In this case, admittedly, the appellant has signed the proclamation. That means, he was aware of the contents of the sale proclamation. Even after knowing the contents of the sale proclamation, he did not take any steps to move the Court for getting all the necessary particulars included in the sale proclamation before the actual sale was held. In this case Ex-B. 2 letter written by the appellant to the decree-holder - 1st respondent - indicates that he was aware of the sale proclamation and the intended sale even on 1st August, 1973. That shows that at every stage he was following the Court proceedings. If he has not taken any steps to have any one of the details included as he considers necessary in the sale proclamation, he hat only to blame himself.

10. In similar circumstances, the Supreme Court in Dhiredra Nath Gorai v. Sudhir Chandra Ghosh : [1964]6SCR1001 pointed out that where the judgment-debtor, who received the notice of the proclamation did not object to the non-compliance with the statutory provisions, and no substantial injury had also been shown by him the sale is not liable to be Set aside on an application under Order 21, Rule 90, Civil Procedure Code. In the same decision, it was pointed out that the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection. If he can waive it, it amounts to an irregularity and if he cannot, it is a nullity. A waiver is an intentional relinquishment of a known right. Even where the mandatory provision has not been followed, if the provision is intended for the benefit of the judgment debtor, then the judgment debtor is entitled to waive that right conferred on him by the statute. There can not be any dispute that Order 21, Rule 66(2)(e) has been enacted for the benefit of the judgment-debtor and for enabling the auction purchaser to estimate the price properly. Such a provision which is intended for the benefit of the judgment-debtor can be waived by him even though the statutory provision is in a mandatory form. As already stated, the appellant herein has remained ex parte throughout in the execution proceedings and even after service of the sale proclamation, he has not approached the Court for getting the particulars of the municipal assessment included in the sale proclamation. Therefore, he should be taken to have waived that right. Even assuming that the appellant has not waived his right, still so long as he has not established the nexus between the irregularity and the alleged inadequacy of the price based on such irregularity, there is no case for setting aside die sale under Order 21, Rule 90, Civil Proce-4ure Code. In this view, we have to uphold the order of the lower Court.

11. The Civil Miscellaneous Appeal is, therefore, dismissed with costs (one set).


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