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1998 DIGILAW 1380 (MAD)

Suman Malai v. Marie Theresamalai

1998-10-16

P.D.DINAKARAN

body1998
Judgment 1. The above revision is directed against the decree and order dated 25.6.1996 in I.A.No.301 of 1997 in I.A.No.38 of 1980 in O.S.No.9 of 1979, on the file of the learned Additional District Judge Pondicherry at Karaikkal, dismissing the application filed by the revision petitioner and refusing to grant leave to the revision petitioners to purchase the second item of the ‘A’ schedule property for the highest price namely Rs.5,81, 000 offered in the public auction as per the final decree dated 24.7.1982 in I.A.No.38 of 1980 in O.S.No.9 of 1979, wherein it was decreed that two items of ‘A’ schedule property be sold 14 in public auction, that if any of the parties came forward to purchase the property for the highest price offered in the auction performance be given to the parties in this auction; that if the parties in this auction are not willing to purchase, then the house be sold to be third parties and the proceeds be divided among the parties allotting 1/5th share each. 2. In pursuance of the said decree, by an order of the learned Additional District Judge dated 18.3.1997, one, Thiru R.Ragayyan, Advocate was appointed as Commissioner to conduct a public auction and the learned Advocate Commissioner gave public notice dated 30.5.1997, imposing the following conditions: "TAMIL" 3. Of course, the said auction notice was also served on the learned junior counsel to the revision petitioner, pursuant to which, the learned junior counsel also gave a telegraphic notice to the revision petitioner on 16.6.1997, which reads as follows: “Auction of property in Deitha Street, Karaikkal, on 18th June, 10 a.m. Please attend.” The said telegraphic notice was received by the revision petitioner on 16.6.1997. However, the revision petitioner did not participate in the auction. 4. The learned Advocate Commissioner conducted the public auction on 18.6.1997 as notified by him. But filed his report only on 26.6.1998, stating that the property was sold in the public auction for a sum of Rs.5,81,000. But, even before his report was filed on 26.6.1998, the revision petitioner filed I.A.No.301 of 1997 on 31.7.1997 itself, seeking the leave of the court to purchase the second item of the ‘A’ schedule property, which was sole in the said public auction for the highest price offered in the public auction at Rs.5,81,000 as per the final decree passed in I.A.No.38 of 1989. That apart, the revision petitioner also filed an objection dated 28.6.1998, pointing out that the learned Advocate Commissioner did not a specify the time and place of conducting the public auction nor reserved the right of the parties to I.A.No.38 of 1980 in O.S.No.9 of 1979 to purchase the property for the highest price offered in the auction and therefore contended that the public auction conducted by the learned Advocate Commissioner was totally contrary to the decree dated 24.7.1982 made in I.A.No.38 of 1980 in O.S.No.9 of 1979. 5. The above I.A.No.301 of 1997 was resisted by the 22nd respondent herein, who is admittedly a third party purchaser stating that: (i) The 22nd respondent is a bona fide auction purchaser; and (ii) the revision petitioner has not proved his bona fide by participating in the another or coming forward to pay the highest bid amount immediately, except saying that the public auction conducted by the Advocate Commissioner is contrary to the final decree dated 24.7.1982 made in I.A.No.38 of 1980 in O.S.No.9 of 1979. 6. The learned Additional District Judge, Karaikkal, by order dated 25.6.1998 in I.A.No.301 of 1997 in I.A.No.38 of 1980 in O.S.No.9 of 1979, refused to grant leave to the revision petitioner and accepted the case of the 22nd respondent herein that the revision petitioner failed to prove his bona fide, as he had not chosen to either participate in the auction in spite of the receipt of the notice by his learned junior counsel on record, who, in fact, participated in the auction and that the revision petitioner had failed to prove that he possessed sufficient funds in his name to pay the sale price, namely Rs,5,81,000 and therefore, dismissed the I.A.No.301 of 1997. Hence, the above revision. 7. Mr.K.Kannan, learned counsel for the revision petitioner, invited my attention to the decree dated 24.7.1982 in I.A.No.38 of 1980, in O.S.No.9 of 1979, on the file of the learned Subordinate Judge, Karaikkal, referred to above; to the auction notice issued by the Advocate Commissioner dated 30.5.1997; as well as to the report of the Advocate Commissioner dated 26.6.1996 and to the objection of the revision petitioner dated 28.6.1998. Mr.Kannan contends that refusing to grant leave to the revision petitioner to purchase the property in preference to the 22nd respondent/auction purchaser as per the final decree dated 24.7.1982 in I.A.No.38 of 1980, in O.S.No.9 of 1979, on the file of the learned Subordinate Judge, Karaikkal, is illegal and contrary to the very decree dated 24.7.1982. He further contends that the very auction notice is illegal, as the Advocate Commissioner failed to notify the time and place of the public auction and that the mere inability of the revision petitioner to participate in the auction would not, by itself, take away his right, protected under the decree dated 24.7.1982, made in I.A.No.38 of 1980 in O.S.No.9 of 1979, referred to above. 8. Per contra, Mr.Yamunan, learned counsel for the 22nd respondent, contends that the court below rightly rejected the application in I.A.No.301 of 1997 in I.A.No.38 of 1980 in O.S.No.9 of 1979, on the ground that: (i) the revision petitioner is not bona fide in staking his class, as claimed in I.A.No.301 of 1997, after a period of 50 days; and (ii) the revision petitioner had not satisfied the court below with sufficient funds in hand, and therefore, he was ready and willing to purchase the property at the highest bid amount viz., Rs.5,81,000 and (iii) that the very failure on the part of the revision petitioner to participate in the public auction would prove that he was not interested in purchasing the property, and therefore,he is not entitled for any such preferential right. 9. I have given a careful consideration to the submissions of both sides. 10. It is not in dispute that the decree dated 24.7.1982 made in I.A.No.301 of 1997 in I.a.No.38 of 1980 in O.S.No.9 of 1979, with regard to two items of ‘A’ schedule property, had become final. 11. The said decree with regard to the two items of ‘A’ schedule property, reads as follows: (a) Two items of ‘A’ Schedule property be sold in public auction; (b) That if any of the parties came forward to purchase the property for the highest price offered in the auction preference be given to the parties in this auction.; (c) That if the parties in this auction are not willing to purchase, then the house be sold to third parties; and (d) That the proceeds be divided among the parties allotting 1/5th share each. 12. 12. If all the above four clauses of the decree dated 24.7.1982 are read together, it makes it clear that the parties in the above application, namely I.A.No.38 of 1980, need not be participants in the public auction. If they are required to participate in the very public auction, they are automatically entitled to stake their claim in the public auction as a bidder. Since they were given a preference to purchase the property by paying the highest price offered in the public auction, their rights are protected under the decree dated 24.7.1982, irrespective of the fact, whether they participated in the auction or not. Therefore, the public auction conducted in pursuance of the order dated 18.3.1997 shall be subject to the preferential rights of the parties as per the decrees dated 24.2.1982 I.A.No.38 of 1980 in O.S.No.9 of 1979. Unfortunately, the Advocate Commissioner failed to notify the above condition relating to the preferential right of the parties in I.A.No.38 of 1980 in O.S.No.9 of 1979 and to notify that any highest bid is subject to the claim of the parties in I.A.No.38 of 1980 in O.S.No.9 of 1979. Therefore, the very public auction held on 18.6.1997 in pursuance of the auction notice dated 30.5.1997 is contrary to the decree dated 24.7.1980 in I.A.No.38 of 1980 in O.S.No.9 of 1979. Consequently, the highest bid for a sum of Rs.5,81,000 in favour 22nd respondent cannot be confirmed. 13. It may also be noted that eventhough the auction was held on 18.6.1997, the revision petitioner filed I.A.No.301 of 1997 immediately on 31.7.1997 itself, but, whereas, the Commissioner filed his report only on 26.6.1998, of course, to which, the petitioner filed his objection on 28.6.1998, as referred to above, objecting that the auction held on 18.6.1997 is illegal for want of mentioning in the auction notice dated 30.5.1997 that the auction shall be confirmed only subject to the preferential right of the parties in I.A.No.38 of 1980 in O.S.No.9 of 1979, because, the rights of the parties in I.A.No.38 of 1980 in O.S.No.9 of 1979 are saved under the decree dated 24.7.1982, and therefore, eventhough the 22nd respondent is the highest bidder, the auction cannot be confirmed in his favour, contrary to the decree dated 24.7.1982. 14. 14. That part, the refusal to consider the petitioners preferential right either on the ground that they failed to participate in the auction or on the ground that they did not satisfy the court below that they possess sufficient funds or on the ground that they failed to prove that they were ready and willing to purchase the petition property at the highest price, are not tenable in law, as they themselves moved the learned Additional District Judge, Pondicherry at Karaikkal, to grant leave to the revision petitioners to purchase the second item of the ‘A’ schedule property for the highest price namely, Rs.5,81,000 offered in the public auction, as per the final decree dated 24.7.1982 in I.A.No.38 of 1980 in O.S.No.9 of 1979. 15. As rightly out by the revision petitioners that the auction notice dated 30.5.1997 itself is bad in law for not mentioning the preferential right of the parties in I.A.No.38 of 1980 in O.S.No.9 of 1979, those preferential rights have become final as per the decree dated 24.7.1982, the consequential public auction held on 18.6.1997 is also held to be illegal, as such public auction is subject to the decree dated 24.7.1982, in which event, the petitioners are also not entitled to seek leave to purchase the second item of the ‘A’ schedule property for the price at Rs.5,81,000 offered in the public auction held on 18.6.1997, which itself is held to be illegal, and therefore, I am obliged to set aside the public auction, because the public auction held on 18.6.1997, which was intended to execute the decree dated 24.7.1982 itself is bad in law, as the learned advocate commissioner appointed to conduct the said public auction failed to incorporate the clause that if any of the parties in I.A.No.38 of 1980 in O.S.No.9 of 1979 come forward to purchase the property for the highest price offered in the auction, preference be given to the parties to purchase the property. Therefore, I am obliged to set aside the very public auction dated 18.6.1997 and remit the matter to the learned Additional District Judge, Pondicherry at Karaikkal, with a direction to appoint an Advocate Commissioner afresh, within two weeks from the date of receipt of this order and issue a warrant to conduct a public auction to sell the second item of the ‘A’ schedule notifying that the same shall be subject to the terms of the decree dated 24.7.1982, namely, (a) that if any of the parties in I.A.No.38 of 1980 in O.S.No.9 of 1979 come forward to purchase the property for the highest price offered in the auction preference be given to the parties in I.A.No.38 of 1980 in O.S.No.9 of 1979: (b) that if the parties in I.A.No.38 of 1980 in O.S.No.9 of 1979 are not willing to purchase, then the house be sold to third parties. The advocate Commissioner shall be directed to conduct the public auction within four weeks from the date of the warrant and to submit his report within six weeks from the date of the public auction, of course, after giving notice to all the parties in I.A.No.38 of 1980. 16. On receipt of the said report of the public auction from the learned Advocate Commissioner, the court below shall pass appropriate final order in terms of the decree dated 24.7.1982 in I.A.No.38 of 1980 in O.S.NO.9 of 1979 on the file of the learned Subordinate Judge, Karaikkal, within two weeks from the date of receipt of the said report from the Advocate Commissioner, as referred to above. 17. Since the very auction held on 18.6.1997 is set aside for the reasons stated above, the 22nd respondent/auction purchaser is permitted to withdraw the sale amount deposited with the court towards the public auction held on 18.6.1997. The revision is ordered accordingly, No costs.