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2001 DIGILAW 705 (MAD)

C. Ponnusamy v. R. Krishnasamy

2001-06-28

V.KANAGARAJ

body2001
Judgment : 1. This C.R.P. is directed against the fair and decreetal order dated 20.10.2000 made in E.A.No.160 of 1998 in E.P. No.27 of 1994 in O.S.No.321 of 1991 by the Court of District Munsif, Virudhunagar thereby dismissing the application filed on the part of the petitioner under Order 21, Rule 90 and Section 47 and Section 151 of Code of Civil Procedure, 1908 praying to set aside the sale held on 25.8.1998 pertaining to item No.3 of the petition properties. 2. The petitioner would come forward to file the above petition seeking to set aside the sale held on 25.8.98 on such grounds such as that since he got admitted to the hospital due to heart attack he was given to understand about the date of sale fixed only on 23.10.96 and his family is an agricultural one purely dependant on agriculture and therefore under Section 60(C) of the Code of Civil Procedure, 1908 the field hut used as residential building by an agriculturist and for keeping agricultural implements and produce cannot be brought to sale; under Section 60 itself the sale of the third item of the petition mentioned properties becomes liable to be set aside; that the property is worth Rs.l lakh whereas the respondent has shown in his application only as Rs.2.000; that those procedures that are to be followed in such circumstances when immovable properties are brought to sale have not been followed in bringing the property for the sale on 25.3.98; that the petitioner is ready and willing to pay the entire amount with costs and other expenses and therefore on such ground the petitioner has prayed before the Court to set aside the sale held on 25.8.38. 3. 3. On the other hand, the respondent therein would plead that, the correct Door Number has been offered to the property brought to sale; that only following all the procedures, the sale was held; that the execution petition had been filed in the year 1994 and thereafter for four years the petitioner had not taken any steps to pay the decree amount due to the respondent; that from the time of filing of the suit it was eight years that he never paid any amount towards borrowed money; that it is false to allege that the property is worth Rs.1 lakh; that without offering any security simply filing any application to set aside the sale cannot be sustained; that already filing another application I.A.No. 104 of 1998 and giving no objection based on which the sale was held; that it is false to allege that the procedures preferred have not been followed; that an application of this type should have been filed within 60 days and beyond the limitation this application has come to be filed and therefore this application also becomes liable to be dismissed on point of limitation besides the other grounds. 4. Based on the above pleading and in consideration of such facts and circumstances brought forth the lower Court would find that the petitioner had received the notice of sale and therefore the Court would arrive at the conclusion that the allegation that the petitioner was hospitalised due to heart attack is wrong. Moreover, on assumptions the lower Court would decide that only to delay the possession of the property being entrusted with the respondent, the petitioner has come forward with such an application. 5. The lower Court would also go into the legal question as envisaged under Section 60 (c) of Code of Civil Procedure wherein it is recited that "houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or labourer or a domestic servant and occupied by him" are not liable to attachment of sale. But, the lower Court would rely upon the evidence adduced on the part of the respondent to the effect that unless there is a motor room in the field house, the place cannot be considered to be a residential place of an agriculturist or place to keep the agricultural implements or produce. But, the lower Court would rely upon the evidence adduced on the part of the respondent to the effect that unless there is a motor room in the field house, the place cannot be considered to be a residential place of an agriculturist or place to keep the agricultural implements or produce. The lower Court would not also agree with the petitioner that no procedures have been followed as contemplated by law; that inspite of the petitioner having come forward to say that he was hospitalised due to ill-health and that the property was worth Rs.l lakh he has not come forward to substantiate the same and therefore would justify the manner in which the property was brought to sale and would ultimately dismiss the petition filed by the petitioner herein, as a result of which the petitioner/judgment debtor has come forward to file the above Civil Revision Petition on certain grounds as brought forth in the grounds of Civil revision petition. 6. Today, when the above matter was taken up for consideration no representation would be offered on the part of the petitioner nor would the petitioner appear in person to argue his case. On the contrary, the learned counsel appearing for the respondent was present and also argued the case on facts. However, the adjournment sought for on his part also having been rejected, this Court has to decide the above matter on materials made available and to the extent that it is argued on the part of the learned counsel for the respondent. The learned counsel for the respondent has put the reasons assigned on the part of the lower Court and would sail along with the fair and decretal order passed by the lower Court. 7. It comes to be known that on a pro-note suit for the recovery of a sum of Rs.4,000 which on decree got accumulated around Rs.5,000 and for the recovery of this amount, the respondent has filed E.P.No.27 of 1994 and the same having been ordered, the third item of the petition property had been brought to sale which is a residential building and the same had also been sold in auction held on 25.8.98 testifying the validity of which the petitioner has filed the application in E.A.No.160 of 1998. 8. 8. It is relevant for consideration that the petitioner would state that he was not able to participate in any of the events encircling the sale of the property in auction since he was hospitalised. The lower Court on the similarity of the signatures found in the notice issued to the petitioner, and that of the petition would arrive at the conclusion that he was there to receive the notice and therefore the contention that he was hospitalised was wrong. Moreover, the lower Court would also find that the petitioner had not produced any valid evidence in support of his contention that he was not keeping good health. However, the lower Court has not attached any importance for the oral evidence adduced on the part of the petitioner to the fact of his ill-health. There is no justification for the lower Court in arriving at the conclusion, that once notice of auction is accepted that the petitioner should not become sick thereafter and therefore based on the acceptance of the notice hypothetical conclusions cannot be drawn by the lower Court regarding the allegation that the petitioner was suffering from heart attack. Secondly, on the side of the respondent absolutely no evidence has been brought forth in proof of the fact that the petitioner was keeping good health and he was not hospitalised on account of ill-health. 9. Evenfor the other allegations that the property which is worth Rs. 1 lakh has been brought to sale for realisation of an amount of Rs.5.000 that too valuing the same at Rs.2.000 by the respondent and if such a big property is brought to sale for realisation of a meager sum the petitioner would contend that he would be subjected to irreparable loss and hardship. Even for this the lower Court would expect some proof from the petitioner to the effect that the property is worth Rs.l lakh. The Court below at this juncture is not bothered about ascertaining the actual value of the property brought to sale on authenticated documents produced by the respondent since it is the respondent who is valuing the said property at Rs.2,000 for the realisation of a sum of Rs.5,000 and odd. These anomalies have neither been attempted to be explained nor proved by proper evidence. However, the lower Court seeking proof from the petitioner has rejected these applications filed by him. 10. These anomalies have neither been attempted to be explained nor proved by proper evidence. However, the lower Court seeking proof from the petitioner has rejected these applications filed by him. 10. Ultimately, the petitioner has sought protection under Section 60 (c) of the Code of Civil Procedure, 1908, on the ground that he was an agriculturist and the premises brought for sale was used not only for his residential purpose but also as a place for keeping agricultural implements and produce. Therefore, this property cannot be brought for sale within the meaning of Section 60(c) of the Code of Civil Procedure, 1908. 11. On a overall consideration of the facts and circumstances, it is vital to consider that not only the petitioner has entered into box and deposed to the effect of the case put up on his part in the petition, but also he has examined another witness in his favour to speak to the effect that the procedures that are to be followed in conducting such an auction sale by the Court have not been followed by beat of tom-tom or effecting wide publicity in and around the place of property. 12. However the respondent only in execution of the decree, obtained, has gone upto the extent of taking possession of the property and at this crucial juncture, the petitioner has come forward to file the petition of this sort under Order 21, Rule 90 and Sections 47 and 151 of the C.P.C. praying to set aside the sale held on 25.8.1998 so far as it is concerned with the third item of the petition mentioned properties. Admitting the fact that the petitioner came to understand about the appointment of the date for confirmation of sale on 23.10.1998 and pleading heart ailment he has come forward to seek protection of the Court, and in consideration of the contention of the petitioner that the property is an agricultural field hut made for residential purpose and for keeping the agricultural implements and the produce of the land and further in view of the fact that he has come forward to allege that it is a property worth Rs 1,00,000 which has been brought to sale for the realisation of Rs.5,000 and odd, that too the respondent would value the same at Rs.2,000, it has to be concluded that the lower Court, without even properly ascertaining the actual market value of the property, has bluntly brought the said property for sale. On these strong reasons alleged and in further consideration of the request made on the part of the petitioner in his pleadings that one more opportunity may be given for him to settle the dues so that he would see that the entire amount is paid with costs and on a overall consideration of the whole case encircling the petition filed by the petitioner, this Court is of the strong view that one more opportunity could be given to the petitioner for payment of the arrears due to the respondent with costs and in compliance of this the sale could be ordered to be set aside. Therefore, the following orders are passed: (i) The petitioner shall deposit the entire arrears due to the respondent into the lower Court, as calculated by the lower Court, with costs and such expenses involved for the conduct of sale etc. within three months from the date of receipt of this order by the lower Court, in which event the lower Court will allow the respondent to draw the said amount and further order setting aside the sale held on 25.8.1998 pertaining to the third item of the petition mentioned properties and release the said property in favour of the petitioner free from encumbrances. (ii) Till such time, all further proceedings pertaining to the execution of the order passed by the lower Court in pursuance of the sale dated 25.8.1998, shall be kept in abeyance. (ii) Till such time, all further proceedings pertaining to the execution of the order passed by the lower Court in pursuance of the sale dated 25.8.1998, shall be kept in abeyance. (iii) In case of default in making the payments by the petitioner as required in clause (i) above, the order made in clause (ii) above will automatically become extinct and the lower Court will be at liberty to proceed further towards the sale proceedings in accord-ance with law, in which event, the option given to the petitioner will go, With these observations the above Civil Revision Petition is disposed of. However in the circumstances of the case, there shall be no order as to costs. Consequently, C.M.P.No. 4988 of 2001 is closed.