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Kerala High Court · body

1992 DIGILAW 356 (KER)

Sreedharan v. Union Bank of India

1992-09-17

MOHAMMED

body1992
Judgment :- The judgment-debtor in execution of a money decree is the revision petitioner. The revision is against the judgment of the Sub Court, Ernakulam in C.M.A.24/90 confirming the order of the executing court on an application under O.XXI R.90 of the Code of Civil Procedure (hereinafter referred to as 'the Code'). The petitioner filed the said application seeking to set aside the sale conducted on 4-7-1984 on the ground of material irregularity and fraud in publishing and conducting the sale and on inadequate sale price. The first respondent is the decree-holder and the second respondent is the auction-purchaser. The Munsiffs Court after conducting inquiry into the aforesaid grounds dismissed the application. In appeal, while confirming the said order, the learned Subordinate Judge agreed with all findings of the Munsiffs Court. 2. The main question to be decided in this revision is whether the application under R.90 of O.XXI of the Code on the ground of inadequate sale value is barred in view of the provisions contained in sub-rule (3) thereof. R.90 of O.XXI reads thus: 90. Application to set aside sale on ground of irregularity or fraud- (1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. (3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. Explanation.-The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule. 3. Explanation.-The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule. 3. The persons who are entitled to apply under sub-rule (1) to set aside the sale are (i) decree-holder, (ii) purchaser, (iii) any person entitled to share in a rateable distribution of assets, and (iv) any person whose interests are affected by the sale. This provision can be invoked only in a case where any immovable property has been sold in execution of a decree. Mere absence of attachment or defect thereof by itself is not a ground for seeking to set aside the sale in view of the Explanation to the rule. The mode of publishing the sale proclamation is prescribed in R.67. R.68 deals with time for sale. R.69 provides for adjournment or stoppage of sale. Rules 82 to 89 prescribe procedure for the conduct of sale on different situations. The material irregularity or fraud contemplated in R.90 relates to the procedure for publishing the sale proclamation and conducting the sale subsequent to the drawing up of the sale proclamation under R.66. The applicability of sub-rule (1) of R.90 is dependent on the condition prescribed in sub-rule (2) thereof. The condition is that the court must be satisfied that the applicant has sustained substantial injury by reason of the irregularity or fraud in publishing or conducting the sale. Under sub-rule (3) the application for setting aside the sale cannot be made on the ground, which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. There is an absolute bar for entertaining such application under this sub-rule on the aforesaid grounds. That would indicate that the application to set aside the sale under R.90 will be maintainable only on the limited ground of material irregularity or fraud in publishing or conducting the sale. 4. One of the grounds alleged for setting aside the sale in the present case is the inadequacy of the sale price shown in the proclamation of sale. R.66 of O.XXI is the provision authorising the proclamation of sale by public auction. 4. One of the grounds alleged for setting aside the sale in the present case is the inadequacy of the sale price shown in the proclamation of sale. R.66 of O.XXI is the provision authorising the proclamation of sale by public auction. It is mandatory on the part of the executing court under sub-rule (1) of R.66 to cause no proclamation of intended sale to be made in the language of the court in a case where the property is ordered to be sold in public auction in execution of a decree. It is also mandatory under sub-rule (2) that notice shall be given to the decree-holder and judgment-debtor before drawing up of such proclamation. Sub-rule (2) further provides that sale proclamation shall specify as fairly and as accurately as possible, all matters stated in clauses (a) to (c) thereof. Clause (e) specifically says that the sale proclamation shall state "every other thing which the court considers material for a purchaser to know in order to judge of the nature and value of the property." The second proviso to sub-rule (2) reads thus: "Provided further that nothing in this rule shall be construed as requiring the court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given by either or both of the parties." The above proviso makes it imperative that the proclamation of sale shall include the estimate and value of the property given by the decree-holder as well as the judgment-debtor. Sub-rule (4) contemplates an inquiry and investigation into the matters to be specified in the sale proclamation. Thus the judgment debtor or the decree holder has abundant opportunity to raise all objections as to inadequacy of sale value, before the sale proclamation is being drawn up. That being so, the provision contained in sub-rule (3) of R.90 debars an application to set aside the sale on the ground that value shown in the sale proclamation is inadequate. Reliance is placed on the decisions referred to hereunder. 5. Order XXI Rule 90(1) of the Code is more or less similar to S.311 of the Code of 1882. A Division Bench of the Allahabad High Court (Old field and Mahmood, JJ.) in Ramchhaibar Misr v. Beechu Bhagat (1885) ILR VII All. Reliance is placed on the decisions referred to hereunder. 5. Order XXI Rule 90(1) of the Code is more or less similar to S.311 of the Code of 1882. A Division Bench of the Allahabad High Court (Old field and Mahmood, JJ.) in Ramchhaibar Misr v. Beechu Bhagat (1885) ILR VII All. 641) while interpreting the above Section observed: "The expression "conducting the sale" as used in S.311 ofthe Civil Procedure Code, does not include any proceedings unconnected with the actual carrying out of the sale, but refers to the action of the officer who makes the sale, and not to anything done antecedent to the order of sale." The above decision was followed by a Full Bench of the Lahore High Court (Tek Chand, Bhide and Beckett, JJ.) in Gauri v. Ude and others (AIR 1942 Lah.153). The Full Bench after considering Rule 66 read with Rules 90 and 92, held thus: "Among with R.66 have to be read Rules 90 and 92 which I think leave little doubt that the Code does not contemplate My objections being raised after the auction, except such as fall within the Scope of R.90, i.e. objections relating to material irregularities and fraud in publishing and conducting the sale. This is presumably because objections such as those to the liability of the property to be sold are intended to be disposed of before the sale. In my opinion, the provisions for notice under 0.21, R.66, Civil P.C. has been made with the intention that all objections which the judgment-debtor may have to the proposed sale should be disposed of before the auction takes place." Finally, the Full Bench observed thus: "I am of opinion that the line of reasoning adopted by the learned judges ofthe Allahabad High Court in I.LR. VII641 not only holds good under the present Code of Civil Procedure but is in some respects strengthened by the changes introduced therein." 6. In Kalu Ram v. Shambhoo Singh (AIR 1964 Raj. 84) the question of under valuation in the sale proclamation came up for consideration before the Rajasthan High Court. VII641 not only holds good under the present Code of Civil Procedure but is in some respects strengthened by the changes introduced therein." 6. In Kalu Ram v. Shambhoo Singh (AIR 1964 Raj. 84) the question of under valuation in the sale proclamation came up for consideration before the Rajasthan High Court. In that case it is observed thus: "The view taken by the courts below that the judgment-debtor was estopped from raising an objection that the inadequate price was due to under valuation in the sale proclamation on account of the fact that he did not take any objection to the sale proclamation even though notice under 0.21 Rule 66 Civil Procedure Code was served personally upon him, is also correct and is supported by a series of decisions." In Ganga Satyavatamma v. Nima Chiti'Appavyamma (AIR 1964 Ori. 91) the Orissa High Court also took the same view. The court held: "Under 0.21 R.90 C.P.C. an application to set aside the sale lies on the ground of a material irregularity or fraud in publishing or conducting it. It is now necessary to examine if the material irregularity committed was with relation to the conducting of the sale. Mr. Rao contends that the violation of the order does not pertain to the conduct of the sale. In Rapichhiabar v. Beechu Bhagat ILR 7.All 641 their Lordships observed that the expression "conducting the sale" relates to the action of the officer conducting the sale and not to anything done before the sale or any proceeding unconnected with the actual carrying out of the sale. The meaning given to the expression has been accepted as sound in almost all later decisions. The Scheme in Order 21 also makes it clear." This court in Meera Pillay Mohammed Kunju v. Subramania lyer Sankara Iyer (AIR 1967 Ker. 223) (T.S. Krishnamoorthy Iyer, J.) observed: "If a judgment-debtor has received notice under 0.21 R.66 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.." 7. The petitioner contends that the sale value of the property shown in the sale proclamation is Far below the market rate prevalent in the locality. He has no case that he had not received the notice before the sale proclamation was finally drawn up, as required under sub-rule (2) of R.66. The petitioner contends that the sale value of the property shown in the sale proclamation is Far below the market rate prevalent in the locality. He has no case that he had not received the notice before the sale proclamation was finally drawn up, as required under sub-rule (2) of R.66. Even after the receipt of notice he did not raise any objections to the value of the property. This is the ground which the petitioner could have taken before the sale proclamation was drawn up. Therefore the petitioner is estopped from advancing the said contention. 8. Notwithstanding the above, I will consider the merit of the contentions advanced by the revision petitioner. According to him, the property was sold at allow price of Rs.8,000/-. It was pointed out that the property would at present fetch a market value of Rs.50, 000/-. The extent of the property sold in court auction is 8 cents. The executing court placed reliance on Exts.A1 and B2. Ext.A1 is a copy of the registered sale deed dated 24-12-1987 in respect of 8 cents of land in the same locality and the value shown in the said document is Rs.3,000/-. Ext.B2 is a copy of the registered sale deed dated 10-4-1984 in respects of ten cents of land. The sale price shown therein is Rs.6,000/-. These two documents, according to the courts below, gave clear and authentic proof regarding the market value of the land prevalent during the year 1984. In that view of the matter, the sale value of Rs.8000/- for the property sold in court auction was found to be reasonable. In that background lam not persuaded to take a different view on the question of inadequacy of sale price. 9. The sale proclamation was duly published on the notice boards of the Village Office, Nad a ma and the Municipal Office, Tripunithura. No allegation is made against the officer who conducted the sale. There is a concurrent finding of the courts below that there is no material irregularity or fraud in publishing or conducting the sale. In view of the evidence on record, the above finding is found to be correct and proper. In that situation I am not prepared to take a different view on this question. In view of the above findings the C.R. P. is dismissed. No costs.