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Velusami Naicken Vs. Dhanakoti Balasubramania Chettiar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1928Mad398
AppellantVelusami Naicken
RespondentDhanakoti Balasubramania Chettiar
Excerpt:
- .....but we are satisfied that there is no substance in any one of them.2. it was stated that the sale proclamation was settled in the absence of the judgment-debtor. the facts show that the notice for the settlement of the sale proclamation was served on the appellant and in it was stated that the sale proclamation would be settled on 25th october 1924. on that day, he did not go before the court. the proclamation as a matter of fact was not settled on that day but the consideration of the question was adjourned to 6th november 1924. it was again adjourned to 19th january 1925. if the sale proclamation was settled in the absence of the judgment-debtor, it was due to his own fault, because he did not present himself in court on 25th october 1924. if he had done so, he would have known.....
Judgment:

1. This appeal arises out of an application by the judgment-debtor in O.S. No. 20 of 1919, on the file of the Subordinate Judge of Coimbatore, to set aside the sale in execution of the decree in that suit, under O.21, Rule 90, Civil P.C. Various irregularities alleged to vitiate the sale have been brought to our notice by the learned Counsel for the appellants, but we are satisfied that there is no substance in any one of them.

2. It was stated that the sale proclamation was settled in the absence of the judgment-debtor. The facts show that the notice for the settlement of the sale proclamation was served on the appellant and in it was stated that the sale proclamation would be settled on 25th October 1924. On that day, he did not go before the Court. The proclamation as a matter of fact was not settled on that day but the consideration of the question was adjourned to 6th November 1924. It was again adjourned to 19th January 1925. If the sale proclamation was settled in the absence of the judgment-debtor, it was due to his own fault, because he did not present himself in Court on 25th October 1924. If he had done so, he would have known the precise date when it was intended to settle the sale proclamation.

3. We will now consider whether the proclamation was defective or the sale was held contravening any of the provisions of law.

4. It was urged that in the sale proclamation the decree-holder did not make any mention of the income accruing from the properties. We have not been referred to any rule of law or procedure which makes it incumbent on the decree-holder to specify in the sale proclamation the income of the properties, though it would be very useful for the intending bidders if the income is mentioned. Very often the income of the properties put up for sale is mentioned in the sale proclamation but the omission to mention it does not necessarily make the sale proclamation defective.

5. The next ground which has been very strongly pressed before us was that the properties have been undervalued, that they were sold in the absence of a sufficient number of bidders and that they were purchased by the decree-holder himself paying only small sums over the upset price mentioned in the sale proclamation. The properties were sold in five lots of which the first three lots consisted of encumbered properties, the 4th and 5th lots being unencumbered ones. It is true that the decree-holder purchased these encumbered properties paying only small sums in addition to the upset price. But this was not due to any fraudulent conduct on his own part. As pointed out by the learned Counsel for the respondents, at the time of the sale these items were subject to a mortgage of about Rs. 13,000. That probably was one of the reasons why the properties did not fetch any high value. It is true there were only two or three independent bidders, but this again had not been shown to be due to any conduct on the part of the decree-holder. The evidence shows that the sale proclamation was duly published in the locality and tom toms were beaten and the Amin sent a return to the effect that everything that is usually done had been done in this case. It very often happens that only persons living in the neighbourhood of the properties sold appear for making bids at auction sales, and when they find that the properties are encumbered they do not come forward with high bids. The present case seems to be one of such instances. Items 4 and 5 were unencumbered properties and we cannot say that the evidence shows that they were sold for a low price. In these circumstances the argument that the properties were sold for a very low price and were purchased by the decree-holder himself does not carry much strength.

6. The last argument was, that at the time of sale there was no attachment in existence. The point was not very seriously pressed by Mr. Srinivasagopalachariar, because the facts show that it is not possible to urge the point with any force. In the execution application filed prior to the present one, the decree-holder omitted to mention the existence of an encumbrance and the Court ordered that 'the petitioner may file fresh petition for sale giving the amount due to him.' So, the petition then pending was 'closed' and the present petition was filed by the decree-holder. In these circumstances there can be no doubt that the present application is only a continuation of the prior application and there has not been any termination of the attachment. The order 'Petition closed' does not in this case mean that the petition was dismissed. There are no circumstances to make 0.21, Section 57, Civil P.C., applicable; there has been no dismissal of the prior application by the default of the decree-holder. So this point also falls to the ground.

7. It has not been proved that the sale held was irregular and that there was any substantial injury resulting from it to the judgment-debtor. We must, therefore, dismiss this appeal.

8. In passing, we may observe that an application was filed by the judgment-debtor on 16th January 1925 to issue a fresh proclamation making various allegations. The learned Judge accepted that application, issued notice to the other side but proceeded with the sale and concluded it on 19th without disposing of this application. We must observe that it would have been more satisfactory in the circumstances if the learned Judge had disposed of the application before holding the sale. One or two misstatements of fact contained in the judgment were brought to our notice by the learned Counsel for the appellants, but we have not discussed them in the judgment as we are satisfied that they do not affect the disposal of the case on the merits. We dismiss the appeal with costs.


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