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2005 DIGILAW 532 (ORI)

KAMALAKANTA DAS v. GOVINDA CHANDRA Patra

2005-09-12

A.S.NAIDU

body2005
( 1 ) THE judgment-debtor in Execution case No. 10 of 1998 pending before the Civil Judge (JD), 1st Court, Cuttack has filed this Writ Petition challenging the order dated 14th December, 2004 passed by the court below rejecting the Misc. Application no. 201 of 2004 filed by him under Order 21. Rules 89 and 90 read with Sections 47 and 151 of the Code of Civil Procedure praying to permit him to deposit the decretal amount and other expenses and to set aside the order of sale of a landed property measuring Ac. 0. 20 decimals appertaining to sabik Plot No 2034 of Mouza Patapur (Balubazar), Cuttack Town put to sale in the aforesaid Execution case arising out of mony Suit No. 639 of 1983. ( 2 ) BEREFT of unnecessary details, the facts as revealed from the records are that the petitioner took a loan of Rs. 1,000. 00 from the opposite party, but then for certain inadvertent reasons he could not repay the same. Consequently the opposite party filed money Suit No. 639 of 1983 before the Court below for realization of his dues from the petitioner and the suit was decreed ex parte on 16th November, 1986. It is averred by the petitioner that notice of the said suit was never served upon him and he was illegally set ex parte. The opposite party after a lapse of 11 years 9 months filed an Execution Case for realization of the decretal dues of Rs. 2,200. 00. Notice of the said Execution Case to the petitioner had also returned unserved with a note that the judgment-debtor refused to accept the same, and on the basis of an affidavit filed fey the decree-holder opposite party service of notice on the petitioner was treated to be sufficient. On 21st September, 1998 the decree holder-opposite party filed a''petition under Order 21, Rule 54, CPC with a prayer to attach the movable properties of the petitioner. As no movable property of the petitioner could be traced, the immovable property of the petitioner, more fully described as above were attached. No steps having been taken by the petitioner-judgment debtor, after observing all paraphernalia, on 16th November, 1999 Notice of proclamation of Sale under Order 21, Rule 66, CPC was directed to be published in local newspapers. As no movable property of the petitioner could be traced, the immovable property of the petitioner, more fully described as above were attached. No steps having been taken by the petitioner-judgment debtor, after observing all paraphernalia, on 16th November, 1999 Notice of proclamation of Sale under Order 21, Rule 66, CPC was directed to be published in local newspapers. Thereafter auction was conducted and the same was knocked down in favour of the decree holder-opposite party who offered the highest bid of Rs. 2,200. 00. ( 3 ) IT is asserted by the petitioner that no notice of either the suit or the execution case had been served on him and he was also not aware of any newspaper publication as he was at Calcutta during that time. Only after his return from Calcutta he learnt about the paper publication and then filed a petition before the Court below to stay the proceedings of the Execution Case and simultaneously filed Misc. Case No. 194 of 1999 praying to set aside the ex parte decree in M. S. No. 639 of 1983. The petition filed by the petitioner for staying further proceeding of the Execution Case having been rejected, he filed Civil Revision No. 75 of 1999 before the District Judge, Cuttack. The said revision was also dismissed. Thereafter the petitioner preferred OJC No. 16034 of 2001 before this Court which is sub ju-dice. ( 4 ) BY the impugned order the, executing court rejected the petition filed by the petitioner under Order 21, Rules 89 and 90 read with Sections 47 and 151, CPC and declined to set aside the sale According to learned counsel for the petitioner, notice of the suit and the execution case having never been served upon the petitioner, he was not aware of any such proceeding. The proceedings before the Court below were conducted in a most surreptitious manner and fraud practiced on the petitioner is very much apparent on the face of the record, inasmuch as ac. 0. 20 decimals of land situated in the heart of Cuttack Town has been sold for a paltry amount of Rs. 2,200. 00 which is the decretal dues, and the land has been purchased by none other than the opposite party-decree holder. It is further submitted that the petitioner is ready and willing to pay the entire decretal dues and. 0. 20 decimals of land situated in the heart of Cuttack Town has been sold for a paltry amount of Rs. 2,200. 00 which is the decretal dues, and the land has been purchased by none other than the opposite party-decree holder. It is further submitted that the petitioner is ready and willing to pay the entire decretal dues and. the same made in favour of the opposite party-decree holder may be set aside. ( 5 ) LEARNED counsel for the opposite party-decree holder at the other hand forcefully submitted that the notice of the suit and the execution case had been duly served on the petitioner in consonance with law and the petitioner-judgment debtor intentionally and with an avowed oblique motive of defrauding the opposite party-decree holder and to cause hindrance in enjoying the fruits of the decree of the Court below, has taken the belated plea which is otherwise not tenable in law. According to him the sale was conducted after observing all paraphernalia and that the sale notice was duly published in local dailies. Auction was conducted and the decree-holder opposite party being the highest bidder the auction was knocked down in his favour. At this belated stage, according to the learned counsel for the opposite party-decree holder the sale cannot be set aside at the instance of the judgment-debtor who failed to take steps at the right time. He further submitted that admittedly a sum of Rs. 1,000. 00 was lent by the opposite party-decree holder to the petitioner-judgment debtor and the latter failed to repay the same. Thus even equity tilts in favour of the opposite party-decree holder as he is entitled to recover his dues from the petitioner-judgment debtor along with interest. It is further forcefully submitted that he has spent huge amount for prosecuting the lis and as such he should not be prevented from enjoying the fruits of the decree on flimsy ground taken by the petitioner-judgment debtor who was admittedly a defaulter. Relying upon para 17 of the decision of the Supreme Court in the case of rajender v. Ramdhar Singh, 2001 (1) Orissa lr (SC) 473 : ( AIR 2001 SC 2220 ), it is submitted that mere inadequacy of the price is not a ground for setting aside a Court sale, and the writ petition may be dismissed in limine. Relying upon para 17 of the decision of the Supreme Court in the case of rajender v. Ramdhar Singh, 2001 (1) Orissa lr (SC) 473 : ( AIR 2001 SC 2220 ), it is submitted that mere inadequacy of the price is not a ground for setting aside a Court sale, and the writ petition may be dismissed in limine. ( 6 ) I have heard learned counsel for the parties at length and have perused the records meticulously. Admittedly the Money suit was decreed ex parte and no notice in the execution case was personally served on the petitioner-judgment debtor. Be that as it may, fact remains that a sum of Rs. 1,000. 00 had been borrowed by the petitioner from the opposite parry. The petitioner did not repay the said loan. The aforesaid money Suit was decreed ex parte as long back as in the year 1986. The Execution case, as it appears, was levied more than eleven years after. Admittedly the decretal dues including interest was Rs. 2,200. 00 and for realization of the said amount ac. 0. 20 decimals of land of the petitioner situated in heart of Cuttack Town was auctioned. The valuation of the said land, even on moderate calculation, would be at least fifty times the decretal amount. To add to it, the decree holder has purchased the said land in Court sale. Such state of affairs throws a cloud of suspicion. As would be evident from records, after completion of sale, due to difficulty in identifying the land purchased, the decree holder-opposite party filed a petition before the Court below seeking assistance of an Amin commissioner. This fact clearly reveals that even at the time of sale, the land sold had remained unidentified. The procedure for conducting a sale by Court is well established. Before a sale is conducted, the property should be well identified. Mere acceptance of an offer does not vest any right to the property on the purchaser. The condition of confirmation of sale by Court operates as a safeguard against inadequate price whether or not it is a consequence of any fraud practiced in the conduct of sale. In every case it is the duty of the Court to satisfy itself that having regard to the market value of the property in question, the price offered is reasonable. In every case it is the duty of the Court to satisfy itself that having regard to the market value of the property in question, the price offered is reasonable. Unless the Court is satisfied about adequacy of the price, the act of confirmation of sale would not be proper exercise of judicial discretion. It is incumbent upon the Court to satisfy itself that the price offered is the best that can be expected to be offered. That is because the Court is the custodian of the interests of the parties and if the Court is satisfied that the property is being sold at an inadequate price it will be not only proper, but necessary that the Court in exercising the discretion, which it undoubtedly has, on accepting or refusing the highest bid at the auction held in pursuance of its orders, should see that the price fetched at the auction is an adequate price, even though there is no suggestion of any irregularity or fraud. It is well to bear in mind the other principle which is equally well settled, namely, that once the Court comes to the conclusion that the price offered is inadequate, no subsequent higher offer can constitute a valid ground for refusing confirmation of sale or offer already received. If any ruling is necessary in support of the aforesaid principle of law, it would suffice to refer to the decision of the Supreme Court in the case of navalkha and Sons v. Ramanaya Das, AIR 1970 SC 2037 . ( 7 ) IN course of hearing, learned counsel for the opposite party being confronted with the queries with regard to price, submitted that the opposite party is ready and willing to offer Rs. 5,000. 00 (five thousand) which itself reveals that the price of the land for which the sale was conducted was grossly inadequate. ( 8 ) IN the case at hand, the ex parte decree was passed in the Money Suit for Rs. 2,200. 00. That was the amount which the opposite party-decree holder was entitled to. The spirit of Order 21, Rule 89 CPC also requires that if a person interested in the property sold by auction is ready and willing to pay to the purchaser the amount, the sale can be set aside. 2,200. 00. That was the amount which the opposite party-decree holder was entitled to. The spirit of Order 21, Rule 89 CPC also requires that if a person interested in the property sold by auction is ready and willing to pay to the purchaser the amount, the sale can be set aside. Considering the entire scenario on the aforesaid background and in order to avoid prolongation/multiplicity of litigations, this Court feels that ends of Justice and equity will be better served if the petitioner-judgment-debtor is directed to pay Rs. 2,200. 00 to the opposite party-decree holder with interest at the rate of 6% per annum from the date of the decree till payment, which will satisfy the decree and mitigate the grievance of the opposite party-decree holder. This Court further directs that if the entire amount indicated above is deposited by the petitioner before the executing Court within a period of four weeks hence, the sale shall stand set aside, failing which the sale made in favour of the opposite party-decree holder shall be confirmed. ( 9 ) WITH the aforesaid observations/directions this Writ Petition is allowed. Petition allowed. .