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1970 DIGILAW 195 (KER)

Hajira Umma v. Chandrasekharan Nair

1970-09-22

K.SADASIVAN

body1970
ORDER K. Sadasivan, J. 1. Judgment-debtor is the revision petitioner. She applied for setting aside the sale in execution of the decree on the ground mainly that the property has been sold for a grossly inadequate price. She stated that the court went wrong in not ordering an enquiry as to whether the price shown in the proclamation is approximately correct. The upset price shown in the proclamation is Rs. 2,000. By way of objection to the proclamation the judgment-debtor stated that the property is worth Rs. 50,000. The decree-holder accordingly issued a fresh proclamation incorporating also the price viz., Rs. 50,000 shown by the judgment-debtor in his objection. To this fresh proclamation no objection was taken by the judgment-debtor and she applied for adjournment of the same when it came up on 3rd June 1968. On 17th June 1968 the sale was conducted and the defendant applied for setting aside the sale on 8th July, 1968. The properties were bid by the decree-holder for Rs. 2,943.97. In the course of the proceedings for setting aside the sale a commission was taken out by the judgment-debtor, and the commissioner reported that the properties are worth Rs. 14,500. To this, both the sides filed objections; but the matter was left at that without any attempt on the part of either party to substantiate the objection. 2. It is contended on behalf of the petitioner that when there was such a wide disparity between the value given by the decree-holder and the judgment-debtor, the court had a duty to hold an enquiry so as to enable it to get an idea regarding the value of the property. In support of this position some decisions were also cited before me. The enquiry contemplated in the decisions cited before me, is an enquiry that has to be conducted at the stage of the sale proclamation and for that the petitioner should move the court. The court is not expected to order an enquiry suo motu. In the present case, the petitioner did not move the court for an enquiry by his preparedness to take out a commission. Nothing was done by him to facilitate the enquiry into the market value of the property. The commission was applied for, only after the sale was conducted. The court is not expected to order an enquiry suo motu. In the present case, the petitioner did not move the court for an enquiry by his preparedness to take out a commission. Nothing was done by him to facilitate the enquiry into the market value of the property. The commission was applied for, only after the sale was conducted. As a matter of fact, he waived his objections to the proclamation when it was issued after incorporating the price mentioned by him in his objection. It has to be inferred from his conduct that he had consented to the sale being held on the said proclamation on the adjourned date. The Privy Council in Girdhari Singh v. Hurdeo Narain Singh, III Indian Appeals 230 held as follows: "Although the alleged inadequacy of price was no ground for refusing to confirm the sale, yet that the above error in specifying the amount of Government revenue was an irregularity for which on proof of substantial injury to the judgment-debtor therefrom the sale might have been set aside; but that the above petition for postponement amounted to an admission by the judgment-debtor that the notification was correct, or that there was no such irregularity as would be likely to mislead." 3. On similar lines is the decision of the Privy Council in Arunachalam Chetti v. Arunachalam Chetty, XV Indian Appeals 171. Therein the learned Judges observed: "Therefore, as far as regards the objection that the description was insufficient, which is relied upon, as up their Lordships understand, as vitiating the sale” for that appeared to be the contention of the counsel for the respondents” the objection was not taken until the sale had been completed. The judgment-debtors knowing, as they must have known, what the description was in the proclamation, allow the whole matter to proceed until the sale is completed, and then ask to have it set aside on account of this, as they say, misdescription. It appears to come within what was laid down by this Board in Olpheris v. Mahabir Pershad Singh” Law Rep. 10 Ind. App. 25” that if there was feally a ground of complaint, and if the judgment-debtors would have been injured by these proceedings in attaching and selling the whole of the property whilst the interest was such as it was, they ought to have come and complained. 10 Ind. App. 25” that if there was feally a ground of complaint, and if the judgment-debtors would have been injured by these proceedings in attaching and selling the whole of the property whilst the interest was such as it was, they ought to have come and complained. 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. That, in Their Lordships' opinion, cannot be allowed, and on that ground the High Court ought not to have given effect to this objection.' 4. On the above authority it must be held that the judgment-debtor has consented to the sale by waiving all objections to the proclamation and circumstances I see no ground to interfere in revision. This revision petition is, therefore, dismissed.