Judgment :- P.K. Balasubramanyan, J. This appeal is by the decree holder auction purchaser. The appeal challenges the order of the executing Court setting aside the sale held in execution of the decree or a petition filed under O. XXI R.90 of the Code of Civil Procedure by the judgment debtors. 2. The decree holder on obtaining the decree filed E.P. 126 of 1985 on 30.9.1985 for realisation of a sum of Rs. 4,28,436.85 by the sale of the properties. Notice under O. XXIR. 66 was issued to the judgment debtors accompanied by a draft proclamation for sale. The judgment debtors filed objections on 18.12.1986 contending that the upset price for the properties shown in the schedule was very low, that the description of the buildings given was not correct, that the five items together were worth Rs. 46 lakhs. No attempt was made by the judgment debtors to substantiate executing Court directed the decree holder to incorporate the value shown by the judgment debtors in the sale proclamation and to produce an amended draft sale proclamation. The decree holder produced an amended draft proclamation. It may be noted that the judgment debtors did not raise an objection that all the items of properties need not be sold as proposed by the decree holder. The executing court approved the draft proclamation, fixed the upset price and ordered the sale of the properties after due proclamation. Thereafter by another order passed after hearing both sides, the executing court permitted the decree holder to bid at the auction and also fixed the reserve price in terms of O. XXI, R.72A of the Code of Civil Procedure. The judgment debtors did not pursue their objections to the settlement of the amended proclamation. The judgment debtors paid some paltry amounts towards the decree debt and got the sale adjourned obviously on waiving fresh proclamation. The executing court finally granted time to the judgment debtors to review the order directing them to pay one fourth of the decree amount. The executing court dismissed that petition. The judgment debtors thereupon filed CRP 1472 of 1987 before this Court. In that revision, the judgment debtors prayed for a stay of further proceedings in execution.
The executing court finally granted time to the judgment debtors to review the order directing them to pay one fourth of the decree amount. The executing court dismissed that petition. The judgment debtors thereupon filed CRP 1472 of 1987 before this Court. In that revision, the judgment debtors prayed for a stay of further proceedings in execution. As per order on CMP 22796 of 1987 this court granted an interim stay for one month on condition that before the expiry of that period a sum of Rs.1 lakh will be paid by the judgment debtors towards the liability. The judgment debtors did not comply. Hence the interim order of stay stood vacated. The properties were sold in auction on 5.10.1987. The decree holder bank purchased the properties for the amount due under the decree, the reserve price. 3. The judgment debtors filed E.A. 556 of 1987 under O. XXI R.90 of the Code of Civil Procedure for setting aside the sale on the ground that the sale was vitiated by irregularity and fraud in the publication and conduct of the sale. The decree holder filed objections repudiating the allegations. The judgment debtors took out a commission for reporting on the value of the properties. The Commissioner filed a report showing a value of Rs. 20,90,256. The decree holder filed objections to the Commission report challenging the method of valuation and questioning the percentage of depreciation adopted by the Commissioner. Serious objection was taken also to the value for the trees fixed by the Commissioner. No other evidence was adduced by the judgment debtors in support of their case. The decree holder also adduced no evidence. The execution court could not find that there was any material irregularity or fraud in the publication and conduct of sale as established. It merely referred to the Commissioner's report without scrutinising the acceptability of the same. It propounded a proposition that there was an obligation on the court to see that only items or portion of the property to satisfy the decree be sold.
It merely referred to the Commissioner's report without scrutinising the acceptability of the same. It propounded a proposition that there was an obligation on the court to see that only items or portion of the property to satisfy the decree be sold. Though it noticed the argument on behalf of the decree holder that mere undervaluation, even if it was established, was not a ground to set aside the sale unless the other elements under O. XXI, R.90 of the Code were also satisfied, and apparently accepted the same, it did not give any reason or finding that in the case on hand there was any material irregularity or fraud in the publication and conduct of the sale. The executing court then stated that the meagre value fetched at the sale is sufficient to hold that there was fraud on the part of the decree holder in getting the property sold. The court did not consider what was the effect of its adjudication on the objections filed by the judgment debtors to the notice under O. XXI R.66 of the Code of Civil Procedure or the scope and effect of O. XXI R.90(3) of the Code of Civil Procedure. It did not also notice that it was for the judgment debtors to clearly establish before the court that there was such gross undervaluation as to shock the conscience of the Court and that there was also material irregularity and fraud in the proclamation and conduct of the sale. By an order which can be taken to be one passed without reference to the relevant requirements of law before a sale held in execution of a decree can be set aside, the executing court proceeded to set aside the sale. 4. Learned counsel for the decree holder contended before us that there was no acceptable evidence that the price fetched at the sale was shockingly low and that the report of the commissioner was totally unacceptable and was based on no legal material and the finding arrived at was on a plainly erroneous basis. Counsel pointed out that it was for the judgment debtors to clearly establish that the price fetched was low.
Counsel pointed out that it was for the judgment debtors to clearly establish that the price fetched was low. He also pointed out that it was not merely sufficient to establish that the price fetched was low but it must also be established that the sale itself was vitiated by material irregularity in publishing and conducting the sale or by fraud. Counsel pointed out that there was absolutely no evidence on the side of the judgment debtors regarding those aspects and there was also no acceptable evidence on the side of the judgment debtors regarding the value of the property. Counsel submitted that the lower court does not appear to be aware of the legal requirements before a sale held in execution of a decree could be set aside. On behalf of the judgment debtors it was contended that the properties were more valuable, as reported by the commissioner and that the executing court was right in holding that the court had an obligation to see that only sufficient property need be sold for discharge of the liability. Counsel relied on the decision in Gnandas v. Paulin Moraes (1998(2) KLT 88) in support. 5. In the case on hand notice was issued to the judgment debtors under O. XXI R.66 of the Code. The judgment debtors filed objections to that notice. The judgment debtors challenged the value of the properties shown by the decree holder and gave their own value in the objection. The executing court settled the proclamation in terms of O. XXI R.66 by directing that the value given by the judgment debtors also be shown in the proclamation and directing the decree holder to amend the proclamation. An amended proclamation was filed by the judgment debtor. That proclamation was settled by the executing court in the presence of the judgment debtors. Whatever objections that were raised by the judgment debtors were dealt with and decided either expressly or impliedly by the order of the executing court finalising the sale proclamation and ordering the sale on the basis of that proclamation. Any objections that could be raised by the judgment debtors on the basis of any alleged defect in the proclamation stands barred not only by S.11 of the Code of Civil Procedure read with Explanation VII thereof but also by the express bar contained in O. XXI R.90(3) of the Code of Civil Procedure.
Any objections that could be raised by the judgment debtors on the basis of any alleged defect in the proclamation stands barred not only by S.11 of the Code of Civil Procedure read with Explanation VII thereof but also by the express bar contained in O. XXI R.90(3) of the Code of Civil Procedure. O. XXI R.90(3) clearly provides that no application to set aside the sale under R.90 shall be entertained upon any ground which the claimant could have taken on or before the date on which the proclamation of sale was drawn up. The objections of the judgment debtors having been entertained by the executing court and appropriate directions issued on the basis of those objections while settling the proclamation, there has been sufficient compliance with O. XXI R.66 of the Code of Civil Procedure in this case and no grounds are made out to find that there was any material irregularity in the publication or the conduct of the sale. We may notice here that none of the judgment debtors even went to the box to speak in support of any case of irregularity or fraud in the matter of settlement of the proclamation or the publication of the proclamation. It is not clear from the order of the executing court what exactly is meant by that court when it refers to the valuation and makes some general remarks in that regard. But we must point out that there is no finding by the executing court also that there was any material irregularity in the settlement of the proclamation or in the publication of the proclamation or in the conduct of the sale. 6. The main ground urged before us on behalf of the judgment debtors was that it was not necessary to have sold all the items of properties for the discharge of the decree debt in view of the fact that the value of the plaint items were much more than the amount due under the decree. We must observe first that there is no acceptable legal evidence on the side of the judgment debtors to show what exactly would be the market value of the property at the relevant time. As we noticed, the judgment debtors led no evidence in support of that plea except taking out a commission. The commission was issued not to an expert valuer. The commissioner was an advocate.
As we noticed, the judgment debtors led no evidence in support of that plea except taking out a commission. The commission was issued not to an expert valuer. The commissioner was an advocate. He filed a report showing what according to him would be the value of the various trees in the property and the buildings. The decree holder objected to the mode of valuation adopted by the commissioner by pointing out that the mode of valuation was wrong, that no proper depreciation has been calculated and that the method of valuing the trees was also erroneous. On the basis of the Commissioner's report which was read out to us, it is not possible to hold that the value suggested by the commissioner can be safely accepted by the court. When a sale held in execution of the decree is sought to be challenged on the ground that the value fetched at the sale is shockingly low. There is clearly an obligation on the judgment debtor to lead evidence in support of the value of the property which alone would enable a Court to come to a conclusion that the price fetched at the execution sale is so shockingly low as to disturb the conscience of the Court. On going through the report of the Commissioner in this case and taking note of the absence of any other evidence on the side of the judgment debtors regarding the market value of the properties, we have to hold that the judgment debtors have failed to prove that the price fetched at the sale was so low as to call for the setting aside of the sale inspite of the fact that no material irregularity in the publication and conduct of the sale has been made out. 7. The decree that was executed was a mortgage decree. O. XXXIV R.4 of the Code (Central) contemplates the passing of a preliminary decree in a suit for sale. The rule provides that the Court shall pass a preliminary decree in terms of R.2 of O. XXXIV and further directs that in default of the defendant paying the amount, the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold and proceeds applied in payment of the amount adjudged to be due by the preliminary decree.
O. XXXIV R.5 of the Code contemplates the passing of a final decree for sale in terms of the preliminary decree. What is to be noted here is that it is given to the Court passing the preliminary decree for sale, to order either the sale of the whole of the mortgaged property or the sale of sufficient part of the mortgaged property. Once this power of directing sale either of the whole or of the portion is exercised by the Court which passes the decree, it is clear that the executing court has no power to go behind that direction in the decree and to alter either the mode of sale' ordered or to consider whether anything less than what is directed by the decree to be sold, need alone be sold. 8. As per O. XXXIV substituted in Kerala with effect from 20.11.1990, the Court need not pass a preliminary decree for sale. O. XXXIV R.3 of the Code contemplates the passing of a composite decree for sale. It also provides that the Court should direct that in default of the defendant paying the amount determined under O. XXXIV R.2 of the Code, the mortgage property or a sufficient part thereof be sold and the proceeds applied in discharge of the decree debt. Hence the provision in Kerala even after the substitution of O. XXXIV of the Code' is the same as that obtaining under the Code of Civil Procedure without State amendments. In the context of the specific provision in O. XXXIV in that behalf, it is possible to argue that the executing court even while exercising the power under R.72A of O. XXI of the Code cannot alter the direction for sale of the whole of the mortgaged property or a portion thereof as provided for in the decree. The power under O. XXI R.72A of the Code can be exercised to fix the reserve price either for the whole property or for portion of it depending upon the direction contained in the decree for sale. It does not enable the executing court to vary the direction for sale contained in the decree. In our view, the provisions of O. XXXIV support the view that at the stage of an application under O. XXIR.
It does not enable the executing court to vary the direction for sale contained in the decree. In our view, the provisions of O. XXXIV support the view that at the stage of an application under O. XXIR. 90 of the Code, the judgment debtor, mortgagor, cannot challenge the sale on the ground that the executing court should have or could have directed sale of only a portion of the mortgage property. The only stage available to the mortgagor to invite the court to take a decision on that question is before the decree and if the mortgagor had not taken advantage of that opportunity. He cannot be heard to say that he could seek to get the sale set aside on that ground or to blame the court stating that the court should have directed sale of only a portion of the mortgage property. The plea in that behalf is barred. 9. Even assuming that the executing court can go into that question, here, the sale of all the items was ordered by the executing court after hearing the judgment debtors. The judgment debtors did not put forward a plea that all the items need not be sold and the sale of only some of the items would be sufficient. They stood by when all the items were first ordered to be sold and then sold. According to us, the judgment debtors are now barred from raising the contention that the sale of some of the items alone would have fetched an amount sufficient to satisfy the decree and hence the- sale should be set aside. As we have noticed, there is also no acceptable legal evidence in this case to show the value of all the items or to show that sale of some of the items alone would have been sufficient. It is not established that substantial injury has been caused. (See Jaswantlal Natwarlal Thakkar v. Sushilaben Manilal Dangarwala (AIR 1991 SC 770). 10. It is no doubt true that the Court has a duty to ensure that its actions do not prejudice a litigant. But there is equally a duty in a litigant to put forward his claims or objections before the Court at the appropriate stage and to seek an adjudication of that claim or objection.
10. It is no doubt true that the Court has a duty to ensure that its actions do not prejudice a litigant. But there is equally a duty in a litigant to put forward his claims or objections before the Court at the appropriate stage and to seek an adjudication of that claim or objection. Having failed to do so, he cannot turn round and say that the Court has not done something which it could have done to his benefit. The duty of the Court is to decide the controversies that are raised before it and not to embark on an enquiry on aspects that are not raised before it, but which it could perhaps have discovered for itself if it had made an attempt to do so. 11. The sale in the present case is on the basis of a decree for sale in a suit on mortgage. The decree directed recovery of the amount due by sale of the mortgaged properties. Hence the sale of the entire properties by the executing court is with jurisdiction and is in obedience to the decree. The executing court cannot go behind the decree. Its only power in that regard if at all, is traceable to O. XXI R.72A(2) of the Code and once that power is exercised, it can no more go behind the decree or its own order under O. XXI R.72A of the Code. 12. Chan Das v. Paulin Moraes (1998(2) KLT 88) was a case where the sale was of properties attached under O. XXI R.64 of the Code of Civil Procedure. It is 238 Dhanalakshmi Bank Ltd. v. Divakaran (P.K. Balasubramanyan, J.) 2000(2) in that context that relying on the decision in Takkaseela Pedda Subba Reddy v. Pujari Padmavathamma ((1997) 3 SCC 337) this Court held that the executing court had first to decide whether the entire property had to be sold to realise the decree amount. There, the sale was ordered by the executing court after attachment in execution and was not by virtue of the force of a decree for sale. The said decision is distinquishable. Its ratio does not apply to a sale in enforcement of a mortgage decree for sale. 13. O. XXI R.72A is a special provision relating to sale in execution of a mortgage decree.
The said decision is distinquishable. Its ratio does not apply to a sale in enforcement of a mortgage decree for sale. 13. O. XXI R.72A is a special provision relating to sale in execution of a mortgage decree. It provides that notwithstanding that permission has been given to a decree holder to bid under O. XXI R.72 of the Code, a mortgagee decree holder shall not bid for or purchase properties sold in execution of a decree on the mortgage unless the court grants him leave to bid for or purchase the property. Sub-r.2 insists that if leave to bid is granted to such mortgagee then the Court shall fix a reserve price as regards the mortgagee and unless the court otherwise provides, the reserve price shall not be less than the amount then due for principal, interest and costs in respect of the mortgage if the property is sold in one lot or in case the sale is to be in different lots, fix the reserve price for each lot consistent with the requirement of sub-r.2 of O. 21 R.72A of the Code of Civil Procedure. At this stage, the mortgagor judgment debtor should seek the fixing of the reserve price for the properties to be sold in separate lots or in a single lot consistent with the decree for sale. Once the court consistent with the decree has fixed the reserve price in terms of O. XXI R.72A(2) clause (a) of the Code, it must be taken that the executing court has passed an order directing that the property be sold in a single lot at the reserve price determined by the court. Since this exercise is undertaken in the presence of the judgment debtor, in our view, the judgment debtor is not entitled thereafter at the stage of an application under O. XXI R.90 of the Code of Civil Procedure, to raise a contention that the entire properties should not have been sold and on that ground alone the sale held in execution should be set aside. There cannot be any dispute that the principles of res judicata apply to proceedings in execution and we are of the view that in any view the fixation of reserve price by the executing court under O. XXI R.72A(2) clause (a) and not under clause (b), would preclude the parties from thereafter questioning the sale of the entire mortgage property.
There cannot be any dispute that the principles of res judicata apply to proceedings in execution and we are of the view that in any view the fixation of reserve price by the executing court under O. XXI R.72A(2) clause (a) and not under clause (b), would preclude the parties from thereafter questioning the sale of the entire mortgage property. 14. In the case on hand we have already indicated that there is no acceptable evidence to show that the price fetched at the sale in execution was shockingly low. The sale was held pursuant to the decree for sale and after the reserve price was fixed and the judgment debtor has had the opportunity to put forward his claim that the entire security need not be sold initially and that the properties must be sold in separate lots in terms of O. XXI R.72A(2)(b) of the Code of Civil Procedure even if that plea could be entertained by the executing court. We may also notice that in E.A. 556 of 1987 filed under O. XXI R.90 of the Code of Civil Procedure by the judgment debtors there is no plea taken that the sale was liable to be set aside on the ground that the sale was of the entire property and that the court had failed to exercise the power vested in it in the matter of ordering the sale. The plea raised is that the value of the property shown in the proclamation was too low and that there were irregularities in the publication of the sale proclamation. No irregularity could be established by the judgment debtors in that regard. We have already held that there is no sufficient evidence adduced by the judgment debtors to show that the price fetched at the sale was shockingly low. In such a situation, the argument of counsel for the judgment debtor that the sale was liable to be set aside on the sole ground that the executing court should have ordered sale of only a portion of the property for the recovery of the debt cannot be sustained. In our view, the executing court was totally in error in setting aside the sale on the materials available.
In our view, the executing court was totally in error in setting aside the sale on the materials available. From any point of view it has to be held that sufficient materials are not made available by the judgment debtors for setting aside of the sale in an application under O. XXI R.90 of the Code of Civil Procedure. We therefore reverse the order of the executing court. 15. Learned counsel for the decree holder bank fairly submitted that notwithstanding the fact that the judgment debtors have not made out a case for setting aside the sale on the ground of material irregularity and fraud in terms of O. XXI R.90 of the Code of Civil Procedure, the decree holder bank was willing to have the sale set aside on the judgment debtors depositing the amounts due under the decree even at this stage though the decree is dated 6.9.1985 and the Execution Petition was of the year 1985. It is seen from the materials that no serious effort had been made by the judgment debtors to pay off the decree amount even in instalments and they did not even take advantage of the this Court in CRP 1472 of 1987. Taking note of the submissions made by counsel for the decree holder and the facts and circumstances in the case, we order that the sale held in execution of the decree in O.S.43 of 1984 on the file of the Subordinate Judge's Court of Cherthala will stand set aside on condition that the judgment debtors deposit in the executing court for payment to the decree holder the entire sums due under the decree inclusive of interest up to the date of deposit, and costs including the cost of the stamp paper for the issue of sale certificate deposited by the decree holder auction purchaser, within a period of 4 months from this date. If the amounts referred to as above are not deposited within the time stipulated, the sale will stand confirmed. The Appeal will stand allowed on the above terms.