Mohammed Kunju v. Sankara Iyer — 1966 DIGILAW 328 (KER)

Judgment :- 1. The Civil Revision Petition filed by the first defendant arises out of proceedings under 0.21, R.90, CPC. In execution of the decree in O. S.175 of 1962 on the file of the Munsiff's Court, Haripad, 95 cents of land belonging to the revision petitioner were sold in court auction on 10 21964 for Rs. 1747-53 P. The revision petitioner filed E. A. 164 of 1963 under 0.21, R.90, CPC. for setting aside the court sale. This application was dismissed by the learned Munsiff. The appeal against the order was also dismissed by the Additional District Judge of Mavelikara. The Civil Revision Petition is directed against these concurrent orders. 2. The properties belonging to the revision petitioner came up for sale on 9121963 when he prayed for two months' time, by filing C. M. P. 5131 of 1963, waiving fresh proclamation. The court adjourned the sale to 10 21964 on condition that the first defendant should pay or deposit 1/4th of the decree amount on or before 10 21964. The order was not complied with. On 10 21964 the revision petitioner filed C. M. P. 575 of 1964 for three months' time. This prayer was refused and the properties were sold in auction. On 10 21964 the execution court passed the following order: "Judgment debtor has not complied with the order passed in C. M. P. 5131 of 1963. C. M. P. 575 of 1964 rejected. Items 1 and 2 are sold to decree-holder's counsel for Rs. 1747-53 P. Sale of item 3 is stopped. The following order is passed on consent of parties: If the judgment debtor pays or deposits the sale amount with interest on the principal at the rate of 5 per cent per annum from the date of sale till date of payment or deposit, the sale will stand set aside. Otherwise the sale will stand confirmed. The payment or deposit is to be made on or before 2 -6-64. Call on 2-6-1964." The revision petitioner filed the petition under 0.21, R.90, CPC. on 9-3-1964. The statement that the order of 10-2-1964 was passed on consent of parties was not disputed in the courts below, and therefore it has to be accepted as correct. The payment or deposit is to be made on or before 2 -6-64. Call on 2-6-1964." The revision petitioner filed the petition under 0.21, R.90, CPC. on 9-3-1964. The statement that the order of 10-2-1964 was passed on consent of parties was not disputed in the courts below, and therefore it has to be accepted as correct. The lower appellate court took the view that the revision petitioner is precluded from challenging the court sale in view of the consent order of 10-2-1964 and that he could not be allowed to contend that the properties sold in court auction are more valuable than the upset price shown in the proclamation. 3. It is seen that the petition under 0.21, R.90, CPC. has been filed only after the order of 10-2-1964. So the only question is how far the said order can affect the right of the revision petitioner from prosecuting the petition under 0.21. R.90 CPC. Normally the petitioner has got the right to have the sale set aside on the ground of fraud and material irregularity in publishing and conducting the sale, if, as a result thereof, he has sustained substantial injury. The consent order of 10-2-64 cannot affect the right of the petitioner to file an application under 0.21, R.90, CPC. Both the courts below do not find that the petitioner has consented to waive any irregularity in the publication or conduct of the sale. The courts below do not find that the revision petitioner waived his right to object to the defects in the proclamation in view of C. M. P. 5131 of 1963 and the order of 9-12-1963. 4. There was some discussion at the Bar whether the sale took place before the passing of the order of 10-2-1964 or subsequent thereto. The order of 10-2-1964 cannot in any way affect the right of the revision petitioner to file a petition under 0.21, R.90, CPC. whether it was passed before or after the sale. But the point to be considered is whether the order on consent operates as an estoppel affecting the right of the revision petitioner to question the sale on the ground of irregularity or fraud in publishing or conducting the sale, or whether on account of the order the revision petitioner has consented to waive any irregularity in conducting the sale. But the point to be considered is whether the order on consent operates as an estoppel affecting the right of the revision petitioner to question the sale on the ground of irregularity or fraud in publishing or conducting the sale, or whether on account of the order the revision petitioner has consented to waive any irregularity in conducting the sale. I am of the view that the matter has not been considered from the proper perspective by the courts below. If a judgment-debtor has received notice under 0.21, R.66, CPC., and failed to object to the contents of the proclamation, he will not be allowed to object to the sale on any of the grounds which he might have urged. Their Lordships of the Privy Council observed in T. R. Arunachalam Chetty v. V. R. R. M.A. R. Arunachalam Chetty, 15 Indian Appeals 171 (P. C.): "It would be very difficult indeed to conduct proceedings in execution of decrees by attachment and sale of property, if the judgment debtor could lie by and afterwards take advantage of any misdescription of the property attached, and about to be sold, which he knew well, but of which the execution creditor or decree holder might be perfectly ignorant that they should take no notice of that, allow the sale to proceed, and then come forward and say the whole proceedings were vitiated." In Marudanayagam v. Manickavasakam AIR. 1945 P. C. 67 at p. 70 it was observed by Their Lordships of the Privy Council thus: "The respondent based his case on waiver by the appellant, contending that the appellant must have known about the sales of his own property in the prior mortgage suit, and about the disposal of the purchase monies; that accordingly when he waived his right to a fresh proclamation he must be taken to have accepted the statements in the existing proclamation and to have waived his right to object to them, and reliance was placed upon the decisions of this Board in Girdhan Singh v. Burdeo Narain Singh (3 LA. 230 (P.C.), and in Arunachalam Chetty V. Arunachalam Chetty (15 I. A. 171 (P. C). 230 (P.C.), and in Arunachalam Chetty V. Arunachalam Chetty (15 I. A. 171 (P. C). The efficacy of a plea of waiver by the appellant depends on the ability of the respondent to prove that the appellant knew the true facts from which an intention on his part to waive his right to object to a misstatement in the proclamation can be inferred. Their Lordships appreciate that there are no reasons for suspecting that the appellant may have known more about the dealings with his property in the prior mortgage suit than he was prepared to admit, but they think that there are reasons at least equally cogent for suspecting that the respondent was in like case. The respondent was a party to the prior mortgage suit; he was presumably served with notice of the execution proceedings, and he was interested in seeing that the direction which the Court had given that property subject to the prior mortgage which was not subject to the respondent's mortgage should be sold before that subject to the respondent's mortgage was carried out. If the respondent knew the true facts, if he purchased at what he knew was too low a figure based on an upset price accepted by the Court owing to his own initial misrepresentation and subsequent suppression of material facts, his conduct would amount to fraud on the Court as the learned Subordinate Judge points out. The court should not have allowed the respondent purchasing at a court sale to take advantage of his own fraud, whatever the conduct of the appellant might have been." The judgment-debtor cannot also urge any objections to the sale, if at the time of postponement of the sale he consented to waive any irregularity. Where, however, he was not aware of the facts, which he was bound to object, there can be no wavier or estoppel. In the case before me, the contention of the revision petitioner is that he did not get notice under 0.21, R.66, C.P.C. 5. Similarly, on the question of estoppel the matter should have been considered in the light of S.115 of the Evidence Act. The decision in Baidyanath v. Satyanarain AIR. 1960 Patna, 36 cannot apply to the facts of the case before me. There, the judgment-debtor, who applied under 0.21, R.90. CPC. Similarly, on the question of estoppel the matter should have been considered in the light of S.115 of the Evidence Act. The decision in Baidyanath v. Satyanarain AIR. 1960 Patna, 36 cannot apply to the facts of the case before me. There, the judgment-debtor, who applied under 0.21, R.90. CPC. to set aside the sale, compromised the matter with the decree-holder, and in the compromise petition it was agreed that the sale should be set aside if the judgment-debtor deposited the decree amount is certain instalments and in default the sale should be confirmed. The judgment-debtor defaulted to pay the instalments and the sale was confirmed. It was held that the judgment-debtor was estopped from challenging the validity of the sale after its confirmation following the default of the judgment-debtor. I do not find any analogy between the facts of the case in Baidyanath v. Satyanarain (AIR. 1963 Patna. 36) and the facts of the case before me. The petition under 0.21, R.90, CPC. was filed in this case within time and before the confirmation of the sale. If the Court conducting the sale was induced to fix a low price in the proclamation on account of misrepresentation or fraud of the decree-holder and this caused the property to be sold in auction for a low price resulting in substantial injury to the judgment-debtor, the decree-holder must not be allowed to plead estoppel against the judgment-debtor to take advantage of his own fraud. These are aspects which are missed by the courts below, and the matter requires reconsideration. 6. I therefore set aside the orders of the courts below and remand the petition filed under 0.21, R.90, CPC. for fresh disposal in the light of the observations made. Both parties will be given fresh opportunities to adduce evidence. The Civil Revision Petition is allowed as indicated above. I make no order as to costs. 7. The execution Court will expedite the trial of the petition and dispose of the same within six months from the date of receipt of the records. Allowed.