Thomas Joseph v. Catholic Syrian Bank — 1998 DIGILAW 196 (KER)

Judgment :- K. Narayana Kurup, J. The second judgment debtor in E.P. 154 of 1990 in O.S.348 of 1987 on the file of the principal Sub Judge, Kottayam is the appellant. He is the petitioner in E. A. 290 of 1993 in E.P. 154 of 1990, an application filed under O. XXI, R.90 CPC to set aside the sale of his property on the ground of fraud and material irregularity. Respondents 1 and 2 are the decree holder and auction purchaser respectively. 2.0. S.348 of 1987 was instituted by the Catholic Syrian Bank for recovery of an amount of Rs. 3 lakhs with interest, an amount which was availed as loan by the first defendant firm of which defendants 2 to 6 in the original suit are the partners and the 7th defendant the mother of the appellant as the guarantor. The title deed of the immovable properties of the appellant-second defendant was given as collateral security for the loan. The 7th defendant i s the mother of the appellant as already noted. In the said suit defendants 2 to 6 filed a joined vakalath and the 7th defendant filed a separate vakalath. In the original suit though a written statement was filed on behalf of the 2nd defendant, it was later withdrawn as Insolvency Proceedings was instituted before the Subordinate Judge's Court, Kottayam as I.P. No. 8 of 1988. However, the suit was not contested which was finally decreed on 22.3.1989. At the time of filing of the written statement in the suit, the appellant - 2nd judgment debtor was residing at Changanacherry and his address at Changanacherry was shown in the written statement. Subsequently, in 1988 he shifted his residence to Kakkanad. The change of address was not informed to the court as the suit went uncontested. The decree holder Bank initiated execution proceedings in the Suit as E.P. 154 of 1990. On 26.5.1990 the court ordered notice to all the judgment debtors. As notice was not served on the judgment debtors, the court ordered fresh notice in the correct address to the judgment debtors on 17.8.1990. Subsequently, the process server who went to serve notice to the appellant at his earlier place of residence at Changanacherry, returned the notice as unserved with an endorsement that the appellant has changed his place of residence and therefore, the notice could not be served. Subsequently, the process server who went to serve notice to the appellant at his earlier place of residence at Changanacherry, returned the notice as unserved with an endorsement that the appellant has changed his place of residence and therefore, the notice could not be served. Even though there was no notice to the appellant in the execution proceedings, the decree holder bank on 1.1.1991 applied to the court for proclamation of sale under O. XXI R.66 of the CPC. On the same day the court ordered R.66(2) notice to all the judgment debtors. However, R.66(2) notice was also not served on the appellant. Instead, the notice to the appellant was served on the mother of the appellant viz. the 7th judgment debtor who was not residing with the appellant. Upset price for the property was fixed on 23.1.1993 and subsequently proclamation of sale was made. Finally, the property was ordered to be sold in auction on 3.4.1993. However, the auction was not conducted on the said date and the property was actually sold in auction on 6.4.1993 for a sum of Rs. 10,60,000/-. The appellant, immediately on coming to know of the auction through his friend one Mathew on 20.5.1993, filed an application to set aside the sale and deposited the whole of the loan amount with up-to-date interest in court being the sum of Rs. 6,30,589.86 on 1.7.1993. The appellant had also discharged his entire liabilities in insolvency proceedings being I.P. 8 of 1988 and the said I.P. was closed in October 1994. 3. The main thrust of the contention of the appellant before the Court below was that he was never served with the notice of sale as contemplated under R.66(2) of O. XXI of the CPC and that there was collusion between his mother and the respondents with the intention of purchasing the property for a song. The appellant further contended that the property worth Rs. 30,00,000/- was sold for a sum of Rs. 10,60,000/-as a result of fraud and collusion between his mother and respondents viz., the decree holder and the auction purchaser. Yet another contention was that as on the relevant date viz. The appellant further contended that the property worth Rs. 30,00,000/- was sold for a sum of Rs. 10,60,000/-as a result of fraud and collusion between his mother and respondents viz., the decree holder and the auction purchaser. Yet another contention was that as on the relevant date viz. the date on which the auction was conducted, the property was in the custody of a Receiver appointed by the Sub Court, Kottayam, under Insolvency Proceedings as I.P. 8 of 1988 and being so, the sale proceedings without getting the leave of the Court which appointed the Receiver is unsustainable in the eye of law. In other words, the non-impleadment of the court Receiver in the execution proceedings was fatal and the proceedings is liable to be see aside. The court below did not find favour with any of the aforesaid submissions of the appellant and dismissed the application for setting aside the sale, albeit it was found that no notice was served on the appellant - the 2nd judgment debtor personally and that the court Receiver was not impleaded in the execution petition. The court below all the same held that service of notice on the 7th judgment debtor was a service of notice on the appellant herein and therefore, there is no material irregularity in the conduct of sale. The Court below also overruled the valuation report submitted by the Court Commissioner for the value of the land and the building thereon for no good reasons and dismissed the petition and hence this appeal. 4. We heard counsel on both sides. Mr. Mathai M. Paikeday, learned senior counsel appearing for the appellant reiterated the contention advanced by him before the court below but teressed by a catena of decisions touching on the various points. Mr. 4. We heard counsel on both sides. Mr. Mathai M. Paikeday, learned senior counsel appearing for the appellant reiterated the contention advanced by him before the court below but teressed by a catena of decisions touching on the various points. Mr. S..Venkatasubramaniya Iyer, learned senior counsel appearing for the auction purchaser vehemnetly canvassed for the position that there is proper notice to the appellant in the execution proceedings as per O. V R.15 CPC, no specific grounds have been mentioned in the petition under O. XXI, R.90 CPC for the sale to be set aside, it was the duty of the appellant under O. VI, R.14-A CPC to provide his new address when he had shifted his residence to Kakkanad, there is no under-valuation of the property as revealed from the sale deeds of neighboring properties and no leave of the court is necessary in cases where a Receiver is appointed in Insolvency Proceedings. The learned counsel for the first respondent - decree holder echoed the above submissions and sought to sustain the order under challenge. 5. On an anxious consideration of the rival contentions of the parties we are satisfied that the appellant is entitled to succeed in this appeal for the following reasons. 6. Under the provisions of O. XX I R.66(2) of the CPC, it is mandatory that the judgment debtor should be served with proper notice before proclamation for sale is drawn up. However, in this case, there is no notice to the judgment debtor even in the execution proceedings. R.66(2) notice was also not served on him. O, XXI, R.66(2) C.P.C. reads as follows: "Such proclamation shall be drawn up after notice to the decree holder and the judgment debtor and shall state the time and place of sale, and specify as fairly and accurately as possible - (a) the property to be sold; 7. We hold that in the execution proceedings notice was ordered to the judgment debtors on 26.5.1990. As the notice to the judgment debtors remained unserved, on 17.8.1990, the court ordered fresh notice to the judgment debtors in their correct address. In this context, it is relevant to note that the appellant -second judgment debtor who was residing at Changanacherry at the time of institution of the Original Suit, had at the time of execution proceedings shifted to Kakkanad, a place near Ernakulam and had permanently settled down at Kakkanad. In this context, it is relevant to note that the appellant -second judgment debtor who was residing at Changanacherry at the time of institution of the Original Suit, had at the time of execution proceedings shifted to Kakkanad, a place near Ernakulam and had permanently settled down at Kakkanad. When the Court ordered fresh notice in the correct address, the decree holder was duty bound to furnish correct address of the judgment debtors and notice ought to have been served in the correct address. The fact that correct address was not provided by the decree holder is evident from the endorsement made by the Process Server on 17.8.1990 when he went to the earlier original place of residence of the appellant at Changanacherry. The endorsement of the process server on the back of the notice is extracted below. From the aforesaid endorsement of the Process Server, it is clear that the appellant had changed his place of residence to Kakkanad and he had a new address there which however was not provided by the decree holder to the Court. In the light of the direction of the Court to issue a fresh notice in the correct address, the decree holder was under an obligation to furnish fresh address of the appellant and to see that notice has been properly served. As long as there is no proper notice under O. XXIR. 66(2) CPC, the sale of immovable property will be vitiated by material irregularity. 8. As per the Kerala Amendment effected to R.66(2)(e) of the CPC it is mandatory that a proclamation of sale should necessarily contain the value of the property as given by the decree holder and the judgment debtor. Therefore, we are satisfied that a duty is cast upon the Court also to see that there is proper notice to the judgment debtor before proclamation of sale is drawn up. It is the duty of-the Court to ensure that the judgment debtor gels a fair deal and sufficient opportunity in fixing the price of his property which is sought to be sold in public auction. The Court must apply its mind with regard to the service of notice to the judgment debtors. A perusal of B diary of the Execution Court would have convicted the Court that no proper notice has been served on the appellant - 2nd judgment debtor. The Court must apply its mind with regard to the service of notice to the judgment debtors. A perusal of B diary of the Execution Court would have convicted the Court that no proper notice has been served on the appellant - 2nd judgment debtor. At any rate, since the matter involves selling of the property of the judgment debtors, the court should have taken every effort to see that the notice is served on him personally rather than being satisfied with the service-of notice on another person on his behalf. The view we are taking is fortified by the following decision in Parasurama Odayar v. Appadurai Chetty & Ors. (AIR 1970 Madras 271 at page 279 - para 20) wherein it was held as follows: "The reasoning of the above decision will apply with equal force to an application, as we have in the present case, to avoid the sale on the ground that the judgment debtor did not have notice at all under O. XXI, R.66, so far as material, enacts that, where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be drawn up in the language of such court, and that the terms of such proclamation shall be settled in court after notice to the decree-holder and the judgment-debtor, except in cases where notices have already been issued under O. XXI, R.64, and such proclamation shall State the time and place of sale etc. In the corresponding S.287 of the Code of 1882 the words "after notice to the decree holder and the judgment debtor" were not there. The addition of these words only emphasises the necessity of the notice to the judgment-debtor which should even otherwise be obvious, because before proceeding to sell a man's property the court must give notice to him that it is going to sell his property on such and such a date. If the man does not have such notice, how can he be expected to tile the application under Art.166 within thirty days of the sale? The law on the point is similarly stated in Pudiyatesh Raghavan v. P.K. Krishnan Nambiar (1992 (2) KLJ 519 at page 522) as follows: "The first question is, whether the judgment debtor was served with a notice of the proposed proclamation of sale. The law on the point is similarly stated in Pudiyatesh Raghavan v. P.K. Krishnan Nambiar (1992 (2) KLJ 519 at page 522) as follows: "The first question is, whether the judgment debtor was served with a notice of the proposed proclamation of sale. Sub-R.(2) of R.66 of the Code of Civil Procedure lays down that the proclamation of sale shall be drawn up after notice to the decree holder and the judgment debtor and shall state therein the particulars set out in clauses (a) to (e) of sub-r.(2) of R.66. Clause (e) of sub-r.(2) of R.66 of 0.21 of the Code applicable in Kerala State, requires that the proclamation shall state not only the value of the property as stated by the decree holder but also the value as suited by the judgment debtor. Implicit in his provision is the right of the judgment debtor to assert his value of the property Sub-r.(2) of R.66 of 0.21 of the Code requires that such proclamation shall be drawn up "after notice to the decree holder and the judgment debtor". Thus, the judgment debtor lias to be served with a notice before the proclamation is drawn up. The notice to the judgment debtor is not a matter of external form, for, as already stated he has a rig lit to State his value of the property In my opinion the notice required under R.66 of 0.21 of the Code was not served on the judgment debtor. Consequently therefore, the judgment debtor had no opportunity of participating in the settlement of proclamation. He was clearly denied the opportunity of slating his price of the land proposed to be sold". This principle of law has been reiterated in Achamma George v. Trio Packaging Company (1993 (1) KLT 868 a (page 872 - DB) to which one of us was a party in the following terms: "Admittedly no order under R.54 (attachment of immovable property) was passed in this case, since the property is charged under the decree. A proclamation of sale is meant for the information of intending purchasers. Some aspects to be required to be decided pursuant to R.66(2) notice are purely administrative in nature. They are fixing of the upset price, details of the sale proclamation and date of sale. These decisions does not affect the rights, liabilities or equities of the parties to the decree. Some aspects to be required to be decided pursuant to R.66(2) notice are purely administrative in nature. They are fixing of the upset price, details of the sale proclamation and date of sale. These decisions does not affect the rights, liabilities or equities of the parties to the decree. But the decisions so far as it affects the rights, liabilities or equities of the parties will be a judicial order. For example, the directions regarding the property to be sold, or where a part of the property would be sufficient to satisfy the decree, which is that part, the amount for the recovery of which the sale is ordered, will affect the rights liabilities of the parties. R.66(2) specifies that the proclamation shall be drawn up after notice to the decree holder and the judgment debtor. Obviously the provision as to the notice to the judgment debtor is intended to give him an opportunity to raise any objection he may have to the proposed sale. Admittedly, no notice under R.66(2) was issued to the judgment debtors 3 to 10." The word "judgment-debtor" is defined in S.2(10) of the CPC as any person against whom a decree has been passed or an order capable of execution has been made. Therefore, it cannot be disputed that the appellant - 2nd judgment debtor came within the definition of the word "judgment debtor". Hence it is clear that the direction to issue notice under R.66(2) to the appellant - 2nd judgment debtor was not observed in this case. In the aforesaid view, the sale is liable to be declared as vitiated by material irregularity. 9, No doubt, learned senior counsel for the auction purchaser would emphatically contend that there was proper notice to the appellant in the execution proceedings as per O. V R.15 CPC. We do not think that the learned counsel is well founded in his submission. In civil proceedings, the general Rule is that whenever a court orders notice to the respondents the notice as far as possible should be served personally on the respoudent (s). Only if the respondent is absconding or there is no reasonable chance of finding the respondent, the other modes of substituted service as provided in the Code of Civil Procedure must be adopted. Only if the respondent is absconding or there is no reasonable chance of finding the respondent, the other modes of substituted service as provided in the Code of Civil Procedure must be adopted. From the endorsement made by process server on the back of the notice to the appellant 17.8.1990, it is clear that the appellant was residing at Kakkanad which was revealed to the process server at a local enquiry. However, the process server did not take pains to serve notice to the appellant personally at Kakkanad. Instead he returned the notice to the Court as unserved with an endorsement that the appellant had changed his residence to Kakkanad. Further, when the Court ordered notice to the appellant under O. XXI R.66(2), the process server went to the appellant's old place of residence at Changanacherry and served the notice to the appellant on the 7th judgment debtor. In this connection, it has to be observed that before effecting substituted service of notice, a process server is to use reasonable diligence to find out the person to be served with notice, and only if he fails even alter using due diligence to find out the person then and then alone the substituted service can be justified. In the instant case, it cannot, be staled that reasonable diligence has been exercised by the process server to trace out the appellant and serve notice on him personally. Even assuming that the appellant has two places of residence, the process server is not justified in trying to locate the appellant only at one of his places of residence. On the cither hand, the process server has to go to the other place of residence of the appellant so as to see that the notice is personally served on him. This question is no longer res Integra. In the decision reported in Bhowanidas Ram.govinda v. Pannachand Luchmipat (AIR 1925 Calcutta 801) it was held as follows: "Where a defendant has two residences or places of business, it is not enough that the plaintiff, in order to be come entitled to lake advantage of the provisions for substituted service, should call once, twice or any number of limes at one of those places. A plaintiff must use reasonable diligence, ascertain the whereabouts of the defendant, and where the defendant, according to the plaintiff, resided at both places the plaintiff cannot be held to have used reasonable diligence to discover the defendant's whereabouts if he does not make enquiries for the defendant at both of these places". In like vein is the observation of the Calcutta High Court in Muchiram Chand v. Paresh Nath (AIR 1956 Calcutta 208 at page 211). 10, O. V R.15 of the CPC reads as follows: "Where service may be on an adult member of defendant's family - Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he lias no agent empowered to accept service of the summons on his behalf, service may he made on any adult member of the family, whether male or female who is residing with him." Thus, substituted service under O. V R.15 CPC can he effected only on an adult member of the family residing with the respondent. No matter how close a relative may be, notice to a particular respondent cannot he effected on such a family member, if he or she is not residing with him. In the instant case, at the first instance when the process server went to serve notice on the judgment debtors, he found that the appellant had changed his residence to Kakkanad and thereof he served notice on the other judgment debtors including the 7th judgment debtor and returned the notice to the 2nd judgment debtor to the court as unserved. It is noteworthy that the 7th judgment debtor did not receive notice at this stage on behalf of the appellant. From the endorsement of the process server, it is crystal clear that the 7th judgment debtor is not residing with the appellant. Therefore, a subsequent notice under O. XXI R.66(2) CPC cannot be said to be effectively served on the appellant, as notice was served not on him personally but on the 7th judgment debtor who was not residing with him. Therefore, a subsequent notice under O. XXI R.66(2) CPC cannot be said to be effectively served on the appellant, as notice was served not on him personally but on the 7th judgment debtor who was not residing with him. As notice was served on a person who was not residing with the appellant, we hold that it cannot be said that proper notice was served on the appellant as per O. V R.15 CPC. This position is made clear by the following decision of the T.C. High Court in Eravi Pillai v. Maluk Mohammed (AIR 1973 TC 494 at page 514), wherein it was held as follows: "Under 0.5 R.15, Civil P.C. i t is only when the defendant cannot be found and has no agent empowered to accept service of the summons of his behalf that service may be made in any adult member of the family of I he defendant who is residing with him. In this case, even if Sankara Pillai is regarded as a member of the family of Narayan i Pillai it is seen from the evidence of PW. 4 that he was not residing with her. PW 4 does not also say that he took the notice to the house where Narayani Pillai was living. He does not remember at what place the notice was served on Sankara Pillai. It is only if Narayani Pillai could not be found in her house that the notice could be served on any adult member of the family residing with her." Accordingly, we hold that notice has not been properly served on the appellant in terms of O. V R.15 CPC since in our judgment notice handed over to the 7th judgment debtor cannot be treated as service on the appellant for the reason that the 7th judgment debtor was not at the relevant time residing with the appellant in the light of the clear endorsement made by the process server on 17.X.1990. 11. We may at this stage refer to a specious plea raised by the learned senior counsel appearing for the auction purchaser to the effect that notice served on the 7th defendant at the registered address of the appellant though not served on him personally is nevertheless valid in the light of the provisions in O. V R.15 and O. VI R.14A. It is admitted that in the written statement tiled on behalf of the appellant in the Original Suit, his address was shown as at Changanacherry. As such the Changanacherry address was the registered" address of the appellant fertile purpose of R.14A of O. VI CPC. This written statement was later withdrawn as Insolvency Proceedings were instituted. No fresh written statement, was filed in the suit. Further, the suit was allowed to be decreed as uncontested. The result, therefore, is that once the written statement was withdrawn the address shown therein could not: be relied on as the registered address and therefore, the duty was on the decree holder to provide his correct address and to see that notice to the appellant has been properly served. In this context reference can be made to O. VI R.14A clause 8 of the CPC which reads as follows: "8. Nothing in this Rule shall prevent the court from directing the service of a process at any other address, if, for any reason, it thinks fit to do so." Therefore, it was the duty of the decree holder in this case to furnish the correct address of the judgment debtors when the court has ordered fresh notice to be taken on return of the original notice. Having failed to do so, the decree holder cannot now rely on O. VI, R.14A and shift the burden of providing the changed address to the appellant. Once the written statement was withdrawn it was as if the appellant had not filed any written statement and the entire proceedings went uncontested. In such circumstances, it was the duty of the decree holder to see that proper notice was effected on the judgment debtor in his correct address. It is also to be noted that O. VI R.14A is not a mandatory provision, but is only an enabling provision which states that every pleading when filed by a party shall be by a statement in the prescribed form, signed as provided in R.14, regarding the address of the party. Clauses (2) and (4) of O. VI R.14A read as follows: "(2) Such address may:. Clauses (2) and (4) of O. VI R.14A read as follows: "(2) Such address may:. from time to time, be changed by lodging in court a form duly filled up and stating the new address of the party and accompanied by a verified petition." "(4) Service of any process may be effected upon a party at his registered address in all respects as though such party resided thereat." The usage of the word 'may' in the above mentioned provisions clearly indicate that O. VI R.14A is only an enabling provision, and the court is free to deviate from the provision wherever it deems fit. In this context, it is also relevant to note that as per the Rule, the registered address shall hold good only for 2 years after the decree. In this case, the suit was decreed on 22.3.1989 and R.66(2) notice to the appellant was served on the 7th judgment debtor on 2.3.1991. Thus, it can be seen that there was only 20 days left for the expiry of the stipulated period of two years. Accordingly, we reject the contention advanced by the auction purchaser based on O. VI R.14A CPC as according to us strict adherence to this directly provision divorced from the context will result in miscarriage of justice. 12. The next point canvassed by the learned senior counsel for the appellant was that there are no lapses on the part of his client in not raising specific grounds in the petition under O. XXIR. 90 CPC for setting aside the sale. In tact, we find in the petition to set aside the sale tiled under O. XXI, R.90 CPC it. lias been clearly stated that the appellant did not receive notice under O. XXI R.66(2) CPC, It was also specifically averred that there was collusion between the 7th judgment debtor viz the mother of the appellant, the decree holder and the auction purchaser. Under O. XXI R.90 CPC the sale is liable to be set aside on the grounds of material irregularity, illegality or fraud. Averments in this regard were specifically made in the petition which was substantiated by evidence also. Therefore, we arc of the view that there is no merit in the contention of the respondents that the petition is lacking in specific grounds. Averments in this regard were specifically made in the petition which was substantiated by evidence also. Therefore, we arc of the view that there is no merit in the contention of the respondents that the petition is lacking in specific grounds. In this context, we cannot be oblivious of the well settled legal position that pleadings need not be argumentative or exhaustive. Accordingly, we have no hesitation in rejecting the contention of the respondents. 13. It was then contended that the sale is liable to be set aside on the ground that there is gross undervaluation of the property of the appellant. Under the facts and circumstances brought to our notice, we are inclined to accept this contention of the learned senior counsel for the appellant. We arc satisfied that the appellant was kept -in total darkness about the execution proceedings in which his property was sought to be sold, thereby depriving the appellant of his legitimate right to quote his price for the property in the sale proclamation. Having regard to the report submitted by the Advocate Commissioner, we are of the view that the property was grossly undervalued and the upset price for the property comprising an extent of 3 acres and 30 cents with buildings thereon having a built up area of about 5000 sq. ft. was fixed as low as Rs. 5 lakhs. When the property was actually sold in public auction, it fetched a price of Rs. 10,60,000/-. According to the appellant, his land alone would have fetched atleast Rs. 30 lakhs. The various buildings in the property arc worth around Rs. 15 lakhs. According to the appellant, the minimum price which should have been fixed for his property together with the building and other assets is "more than Rs. 30 lakhs". The appellant was prevented from appearing before the execution court at the time of drawing up the proclamation as he was not informed of the proceedings. Had the appellant got an opportunity to value his properly before the proclamation was drawn up, he could have very well included his valuation in the proclamation and he could have ensured and satisfied himself that his property was sold at a fair price in the auction. Had the appellant got an opportunity to value his properly before the proclamation was drawn up, he could have very well included his valuation in the proclamation and he could have ensured and satisfied himself that his property was sold at a fair price in the auction. It was only because no notice was served on the appellant under O. XXI R.66(2) CPC that the appellant failed to appear before the execution court and prevent his property from being sold for such a magic price. In the aforesaid view, we are satisfied that substantial injury has been caused to the appellant due to non-service of notice. Due to the failure on the part of the decree holder to provide correct address of the judgment debtors, even in spite of a direction in that regard by the court below, the appellant has been denied of the opportunity to quote his price for the property and thereby depriving him of his right provided as per the Kerala Amendment effected to O.XXI R.66(2)(e) of the CPC. On account of the non-appearance of the appellant at the time of drawing up the proclamation for sale, he was unable to point out to the court the inadequacy of the price quoted and the decree holder took advantage of the situation and the property was grossly undervalued. In the proceedings under O. XXIR. 90 CPC initiated by the appellant to set aside the sale, a commission was taken out at the instance of the appellant to value the property. The Commissioner's report reveals that the market value for similar properties in the area was around Rs. 10,000/- per cent. He estimated the value for the buildings in the property as around Rs. 12 lakhs. Thus, even going by the Commissioner's Report the appellant's property ought to have fetched around Rs. 45 lakhs. However, the upset price was fixed by the Court at Rs. 5 lakhs. From this, it is abundantly clear that the execution court failed to apply its mind in fixing the upset price and the property was grossly under-valued. Therefore, there has been no effective compliance with O. XXIR. 64 and O. XXIR. 66(2)(a)of the CPC in this case. Denial of opportunity to the appellant to quote his price for the property to be sold in auction has resulted in the appellant losing his prime property for a paltry sum of Rs. Therefore, there has been no effective compliance with O. XXIR. 64 and O. XXIR. 66(2)(a)of the CPC in this case. Denial of opportunity to the appellant to quote his price for the property to be sold in auction has resulted in the appellant losing his prime property for a paltry sum of Rs. 10,60,000/-, when actually the properly as per the then prevailing market value could have, according to the appellant fetched at least Rs. 30 to 35 lakhs. The sale is therefore, illegal and is liable to be set aside. According ions, the allegation of material irregularity and substantial injury arc implicit in the facts pleaded and established especially in the light of the Commissioner's report putting a very high value on the property in question. No doubt, learned-senior counsel appearing for the auction purchaser would argue that there is no under-valuation of the properly as revealed from the sale deeds- of neighboring properties. In this connection, we have to remind ourselves that it is notorious that the real value of the properly will not he rellcctcd in the sale deed and that properties are usually under valued in sale deeds for the purpose of registration in order to minimize the stamp duty. Further a property cannot always be safely valued merely on the basis of other sale deeds. The value of the properly is also dependent upon the improvements thereon, the lay out, its, the locality etc. The Commissioner might have taken into consideration all these (o arrive at the land value. Therefore, the sale deeds relied on by the auction purchaser to prove the market value of the property cannot be conclusive proof of the real market value of the properly of the appellant. In this regard, the execution court ought to have given more weight to the report of the Commissioner appointed by it to value the properly. According to the Commissioner's report, the market value of the properly at the relevant point of time was around Rs. 10.000/- per cent. The Commissioner further valued the building at Rs. 12 lakhs considering all the relevant aspects. It is also mentioned in the Commission report that there were several valuable trees in the properly. Therefore, in the ordinary course of events, reasonably the execution court ought to have relied upon the report of the Commissioner who was specifically deputed by the Court to value the property. 12 lakhs considering all the relevant aspects. It is also mentioned in the Commission report that there were several valuable trees in the properly. Therefore, in the ordinary course of events, reasonably the execution court ought to have relied upon the report of the Commissioner who was specifically deputed by the Court to value the property. There is no reason why the Commissioner's report shall not be treated as material piece of evidence in the absence of any vitiating circumstances to suspect his veracity. In the order under challenge, the court below has rejected the Commissioner's report, according to us, on a perverse ground viz. the Commissioner is not competent to value the land as he is not an Engineer'. This according to us, is not the way in which the court below should have addressed itself to the question. It cannot be treated as a rule of thumb that an Engineer alone can value the land and building correctly. A Commissioner who is well versed with men and matters will certainly be competent to fix the value of the land and building taking into account the various relevant factors which are brought to his knowledge. Such a report cannot be lightly brushed aside on the ground that the Commissioner is not an expert. Therefore, we have no hesitation in holding that the property of the appellant was sold at a price which is quite inadequate and hence, the sale is liable to be set aside. That apart, it has to be noted that only that much of property as is absolutely necessary to satisfy the decree debt alone should have been brought to sale and not the whole property. This principle has been followed more in its breach than in its observance as is clear from the facts and circumstances already disclosed in as much as the entire properly of the appellant was sold in auction, without first deciding whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to satisfy the decree. The Apex Court in Ambati. Narasayya v. M. Subba Rao (AIR 1990 SC 119) observed as follows: 7. The Apex Court in Ambati. Narasayya v. M. Subba Rao (AIR 1990 SC 119) observed as follows: 7. It is of importance to note from this provision that in all execution proceedings, the Court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to satisfy the decree. II the property is large and the decree to be satisfied is small, the court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree holder. It is immaterial whether the property is one or several. Even if the property is one, it a separate portion could be sold without violating any provision of law only such portion of the properly should be sold. This in our opinion, is not just a discretion, but an obligation imposed on the court. Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without jurisdiction". After observing thus, the Court went on to hold as follows: "9. The Court has blind fold sold the entire properly. This is an usual feature which we have noticed in most of the execution cases. We must deprecate this tendency. There is a duty cast upon the Court to sell only such property or a portion thereof as necessary to satisfy the decree. It is a mandate of the Legislature which cannot be ignored. We cannot, therefore, sustain the impugned sale. It must be set aside being in contravention of the provisions of R.64, O. XXI, CPC". 14. The desirability and necessity to avoid a distress sale has been stressed by the decision of this Court reported in Padiyath Raghavan v. P.K. Krishnan Nambiar (1992 (2) KLJ 519) wherein it has been held that the court has a duty to ensure that the property in excess of what is required to realise the amount necessary to satisfy the decree is not put to sale. Clause (a) of sub-r.(2) of R.66 of O. XXI of the Code stipulates that the proclamation must set out the property to be sold or where a part of the property would be sufficient to satisfy the decree, such part. In the light of the aforesaid decisions, we have no hesitation to hold that the sale held without considering whether a part of the property can satisfy the decree will be one without jurisdiction. 15. From the endorsement made by the process server who went to effect service of notice on the appellant on 17.8.1990 at his earlier original place of residence at Changanacherry, it is clear that the appellant was not residing 'there and he has shifted to Kakkanad. It is clear from the endorsement that the process server had on that day effected notice to the 7th judgment debtor. However, the 7th judgment debtor did not receive the notice in the execution proceedings on behalf of the appellant and the notice to the appellant was returned as unserved. Further, when O. XXI R.66(2) notice was issued to the judgment debtors, the 7th judgment debtor received notice on behalf of the appellant? The appellant has deposed to the effect that he and the 7th judgment debtor are not in good terms and they arc not residing together. Therefore, the conduct of the 7th judgment debtor in receiving notice on behalf of the appellant naturally provides a reasonable indication of collusion between the 7th judgment debtor and the decree holder. In this context, it is relevant to note that the decree holder is a financial institution and therefore, their only concern is-to get back the loan amount with due interest. According to the then prevailing market price of similar properties in the area the sale of even a portion of the appellant's property would have satisfied the decree amount. However, the decree holder quoted very low price for the appellant's property and misguided the execution court to grossly under-value the property and finally to get the properties sold in public auction for a paltry sum. In the facts and circumstances, we are inclined to accept the case of the appellant that the decree holder had brought about the sale of the property colluding with the 7th defendant in a malafide manner without issuing proper notice before settlement of proclamation. 16. In the facts and circumstances, we are inclined to accept the case of the appellant that the decree holder had brought about the sale of the property colluding with the 7th defendant in a malafide manner without issuing proper notice before settlement of proclamation. 16. It is clearly contended that the sale of the property is liable to be set aside on the ground that leave of the court in Insolvency Proceedings has not been obtained. It. is not in dispute that the execution proceedings were initiated by the decree holder at a time when the property was under the possession of the Receiver in Insolvency Proceedings which were pending before the Sub Court, Kottayam. Though R.66(2) notice was sent to the Receiver, no leave was admittedly obtained from the Court which appointed the Receiver. It was submitted that since no leave had been obtained from the court by the decree holder for selling the property in public auction, the sale conducted is, illegal and liable to be set aside. On the other hand, it was argued on behalf of the auction purchaser that the appointment of the Receiver under Insolvency proceedings is different from the appointment of a Receiver under O. XL R.1 CPC. According to him under Insolvency Proceedings the property vests with the Receiver and he is free to do whatever he deems fit with regard to the property. Therefore, no leave of the Court is required if R.66(2) notice is served on the Receiver. It was also submitted that at any rate for a secured creditor who has obtained a decree for sale no leave from the Insolvency Court is necessary unlike in the case of unsecured creditor. In support of the above submission the learned Senior Counsel for the auction purchaser has relied upon the various provisions of the Travancore-Cochin Provincial Insolvency Act and the Scheme discernible there from. 17. We do not think that it is necessary for us to consider the merits of the above contention and enter a finding on the question whether the sale in this case is liable to be set aside on the ground of want of leave from the Insolvency Court. For one thing, we have already found that the sale in question is liable to be set aside on the specific grounds mentioned in R.90 of O. XXI C PC. For one thing, we have already found that the sale in question is liable to be set aside on the specific grounds mentioned in R.90 of O. XXI C PC. Secondly, we find that want of leave from the Insolvency Court is not a plea raised in the application filed for setting aside the sale. It is a contention raised for the first time during the arguments in the court below. We would accordingly leave the issue open without recording any finding thereon. 18. In the light of our finding that the sale is liable to be set aside on the grounds mentioned in R.90 of Q. XXI CPC the-'further question to be considered is what are the terms and conditions subject to which the sale has to be set aside in the peculiar facts and circumstances of the case. The appellant has staled that he had already deposited in the execution court the entire amount due as per the decree together with interest as on the date of deposit for discharging the decree liability. The auction purchaser has also deposited the entire auction amount as required by the provisions in the CPC to get the sale confirmed in accordance with law. Thus, the auction purchaser has deposited Rs. 2,65,000/- and Rs. 7,95,000/- on 6.4.1993 and 13.4.1993 respectively. The stamp duty required for issuing the certificate of purchase also seems to have been deposited in time. However, there is no case that sale certificate has in fact been issued to the auction purchaser. The above undisputed facts would show that the auction purchaser has deposited the entire auction amount in Court including the stamp duty required as early as in 1993. It is only thereafter on 1.7.1993 the appellant had deposited the decree amount. Both the amounts are even now lying in Court deposit without qualifying for any interest. The deposit made by the appellant can be taken only as an evidence of his readiness to discharge the decree liability in case the court set aside the sale unconditionally or subject to such conditions as the court deems fit to impose. In this connection, it is relevant to note that we have not accepted the case of the appellant that the auction purchaser was also a party to the collusion between the decree holder and the 7th defendant. In this connection, it is relevant to note that we have not accepted the case of the appellant that the auction purchaser was also a party to the collusion between the decree holder and the 7th defendant. As such we have to proceed on the basis that the auction purchaser was a person who participated in the auction as a bonafide purchaser. Setting aside of the sale at this stage, after about 5 years would definitely cause heavy loss to the auction purchaser for no fault of his if setting aside is ordered unconditionally. We in this connection take note of the fact that the learned counsel for the appellant himself has during the course of the arguments expressed the dreadiness of the appellant to abide by any reasonable condition which this Court may choose to impose for setting aside the sale. Having due regard to all the facts and circumstances of the case, we are of the considered view that the sale in this case can be set aside only subject to the condition that the appellant pays to the auction purchaser interest at the rate of 10% on the amounts deposited by the purchaser in court for the period from the respective dates of deposit till date of payment and discharges the entire decree amount by deposit in court for payment to the decree holder Bank. 19. In the circumstances, the sale will stand set aside subject to the following terms and conditions: (i) The appellant shall deposit in the execution court the entire amount due by way of interest at the rate of 10% per annum on the amount deposited by the auction purchaser from the respective dates of deposit till today within 2 months from today. (ii) The appellant shall also deposit the balance amount due under the decree as on today within two months from today in the execution court. (iii) On deposit of the amounts as directed in clauses (i) and (ii) above the sale will stand set aside. The impugned order will also stand set aside. (iv) On such setting aside of the sale, the decree holder will be entitled to realise the entire amount due as per the decree from the deposit made by the appellant in court, in discharge of the decree liability. On such realisation the execution court shall pass orders entering full satisfaction of the decree. (iv) On such setting aside of the sale, the decree holder will be entitled to realise the entire amount due as per the decree from the deposit made by the appellant in court, in discharge of the decree liability. On such realisation the execution court shall pass orders entering full satisfaction of the decree. (v) The auction purchaser shall be entitled to get refund of the entire amount deposited by him along with the amount deposited by the appellant towards 10% interest as directed in clause (i) above as compensation for the losses incurred by him in the matter. (vi) The auction purchaser will also be entitled to get refund of the amount of stamp duty deposited by him in court in accordance with law. (vii) On the fulfilment of all the terms and conditions indicated above the execution court may pass appropriate orders and dispose of the E.P. finally. (viii) On default in complying with the conditions in clauses (i) and (ii) above, the conformity of the sale as per the impugned order will stand and the appeal will stand dismissal with costs. The parties will thereupon be entitled to work out their remedies as if the sale has been validily confirmed. The appeal is disposed off as. indicated above.