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2008 DIGILAW 729 (MAD)

Saravana Theatre v. T. Ramalingam

2008-02-28

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- The order passed in EA.No.76 of 2007 in EP.No.31 of 2005 in O.S.No.172 of 1999 on the file of the Court of Subordinate Judge, Gudiyatham, is under challenge in this revision. EA.No.76 of 2007 was filed by the Action Purchaser of Saravana Theatre, Gudiyatham, in EP.No.31 of 2005 in O.S.No.172 of 1999. The said EA.No.76 of 2007 was filed for delivery of the property scheduled to EP.No.31 of 2005 viz., Saravana theatre. Since the petitioner in EA.No.76 of 2007 could not take delivery, he filed EA.No.154 of 2007 for break open to effect delivery, which was ordered by the learned Subordinate Judge, Gudiyatham. EA.155 of 2007 was filed in EA.No.76 of 2007 for police help, which was also allowed by the learned Subordinate Judge, Gudiyatham. Against the order of delivery in EA.No.76 of 2007, the judgment debtors in O.S.No.172 of 1999 have preferred this revision. 2. Heard the learned counsel appearing for the revision petitioners, who would contend that under the proclamation of sale dated 212. 2006, the property intended to be sold is in S.No.70/1 and the property sold under the Court auction sold dated 21. 2007 is also in S.No.70/1, but the Auction Purchaser cannot take delivery of S.No.70/2 which is not the subject matter of the sale. According to the learned senior counsel appearing for the revision petitioners M/s.Saravana Theatre was attached before the judgment for realization of the decree amount in O.S.No.172 of 1999 is in S.No.70/2 and not in S.No.70/1. According to the learned senior counsel for the revision petitioners even as per the evidence of R.W.1 -VAO, Saravana Theatre is only in S.No.70/2 and it is not in S.No.70/1, but the decree holder in EP.31 of 2005 had scheduled Saravana Theatre as the property situate in S.No.70/1, wherein Saravana theatre does not exist. 3. The learned senior counsel Mr.T.V.Ramanujam appearing for the revision petitioners relying on AIR 1978 SC 1073 (Mohini Mohan Chakravarty VS. The State of West Bengal and another), contended that since Saravana Theatre is situate in S.No.70/2, on the basis of the sale certificate for Saravana Theatre executed by the Court in respect of S.No.70/1, the respondents cannot take delivery of Saravan Theatre. The State of West Bengal and another), contended that since Saravana Theatre is situate in S.No.70/2, on the basis of the sale certificate for Saravana Theatre executed by the Court in respect of S.No.70/1, the respondents cannot take delivery of Saravan Theatre. The facts of the said case in brief are as follows:- "Official Receiver had obtained a decree for eviction against K, who had contended that the tenancy in favour of K is permanent one, she is not liable to be evicted from the property. Further it was contented that in execution of money portion of the said decree Official Receiver sought to realise the amount of attachment and sale of Ks immovable property comprise in certificate stands on Ks loan. The said premises was attached and sold. After confirmation of sale, the sale certificate was issued at the time of said sale, the right, title and interest of K in the suit land was subject matter of the aforesaid appeal. Objections under Section 47 were dismissed. K filed suit against R which was dismissed but in appeal the High Court directed that on Ks depositing the value of the property, the same would become her property. On appeal to Supreme Court, it has been held by the Honourable Apex Court as follows:- "in view of the description of the property in the schedule and in the application of R for sale of the immovable properties standing on Ks land, the sale certificate could not be construed as conferring any right, title or interest on R with respect to permanent tenancy rights of K in suit land which was underneath and appurtenant to the structures. 4. Relying on the dictum in 1995(3) SCC 579 (Neni Gopal Paul Vs. T.Prasad Singh and others), the learned senior counsel appearing for the revision petitioners would contend that appellate Court or Supeme Court has power to take suo motu judicial notice of the illegality and set aside the sale even after expiry of limitation period prescribed therefor. The short facts of the said case is that:- "In suit No.2 of 1966 filed by the United Bank of India against Hanuman Foundries Ltd., for foreclosure and sale of hypothecated property, pursuant to a preliminary decree, the court receiver sold the hypotheca at which the appellant became highest bidder for Rs.60 lakhs and he paid a sum of Rs.5 laksh. The sale was confirmed in his favour on 29.08.1990. Thereafter Respondents 1 and 2 were sought to be impleaded and after impleading them, the Division Bench directed the Single Judge to hear the respondents before they are ejected from the property in question by order dated 3. 1992, which was challenged in the appeal. While disposing of the appeal, the Division Bench has pointed out that the sale was vitiated due to the manner in which the Single Judge dealing, with company law matters, passed the orders in his chamber by observing thus: It would be sufficient for this Court, if we make our observations to deprecate the way His Lordship took up the matter on various dates subsequent to the passing of the decree and sought to pass various orders relating to sale of the property in favour of the intending purchaser Nani Gopal Paul and others at a price of Rs.60 lakhs, when there were other offers on the field of a higher denomination and magnitude. Judicial propriety prevents us from making further comments in respect of the manner His Lordship directed Mr.Gour Roychoundhury, the Receiver to make the choice relating to the intending purchaser in the manner it was so done. If there were other offers in the filed, the court would have been vigilant enough to scrutinise such offers whatever they were worth and there ought to have been a due application of mind in this particular perspective." While disposing of the appeal the Honourable Apex Court has observed as follows:- “We are of the view that we can take suo motu judicial notice of the illegality pointed out by the Division Bench, committed by the Single Judge of the High Court in bringing the properties to sale. Accordingly, we are of the view that the circumstances are sufficient to vitiate the validity of the sale conducted by the Court receiver as approved by the learned Single Judge. Confirmation of sale was illegal. Accordingly, we are of the view that the circumstances are sufficient to vitiate the validity of the sale conducted by the Court receiver as approved by the learned Single Judge. Confirmation of sale was illegal. Though, as contended by Shri Ganesh that normally an application under Order 21, Rule 89 or Rule 90 or under Section 48 CPC need to be filed within limitation to have the sale conducted by the court set aside and that procedure need to be insisted upon, we are of the view that this Court or appellate Court would not remain a mute or helpless spectator to obvious and manifest illegality committed in conducting court sales. We are informed and it is not disputed that the appellant had deposited only Rs.5 lakhs and balance amount was assured to be deposited only after delivery of possession. That also would be illegal. Accordingly, the sale and confirmation thereof on 28. 1990 are set aside." .5. Relying on (2006) 3 M.L.J. 233 (S.C.) (Mohammed Masthan v Society, Congregation of the Brothers of the Sacred Hard and another), the learned senior counsel for the revision petitioners would contend that if the property to be delivered could not be identified then the delivery effected thereof is to be construed as irregular delivery. The exact observation in the above said judgment runs as follows:- ."A decree for permanent injunction has been passed in its favour. The appellant herein in terms of the decree passed in his favour in O.S.No.140 of 2003 and the purported sale deed pursuant thereto on 16. 2003, merely has stepped into the shoes of the second respondent. He cannot claim a better title than her. Thus, so long the decree passed in the said O.S.No.1220 of 1987 is not set aside, and/or the original suit No.381 of 2003 is not decreed, the possession of the first respondent herein could not have been interfered with. The slip-shod manner in which the purported delivery of possession was sought to be effected has been noticed by us. The Central Nazir did notice that the schedule property was not in possession of the judgment-debtor in O.S.No.140 of 2003 but still the possession thereof was purported to have been taken through senior bailiff under Order 21, Rule 35 of the Code of Civil Procedure. Even the senior bailiff in his report states that he went to the plaintiffs place. The Central Nazir did notice that the schedule property was not in possession of the judgment-debtor in O.S.No.140 of 2003 but still the possession thereof was purported to have been taken through senior bailiff under Order 21, Rule 35 of the Code of Civil Procedure. Even the senior bailiff in his report states that he went to the plaintiffs place. The defendant was not there. How the land was identified had not been shown. Even the Village Administraive Officer refused to sign." .6. The learned Senior Counsel for the revision petitioners relying on 2005(4) MLJ 549 (G.Chandrasekaran Vs. Palaniappa Company, by its Joint Partner, Alagammal Achi, W/o.Chokkalingam Chettiar, Tiruchirapalli and others), would contend that even the sale become final issue of sale certificate, yet auction sale could be set aside if it is vitiated by fraud and irregularities and is obtained by abusing the process of Court. The relevant observation in the above said case runs as follows:_ ."The Supreme Court in (1995) 3 SCC 579 , has taken suo motu judicial notice of the illegalities in the sale and set aside the sale even after the expiry of the period of limitation prescribed therefor. Viewed in the light of the above decision, the Executing Court cannot be said to have exceeded its limits in setting aside the sale and recalling the sale certificate in the proceedings under Order 21, Rule 95 CPC. When such irregularity/fraud is brought to the notice of the Court, the Court cannot remain a mute spectator solely because the sale was already confirmed." 7. Yet another judgment AIR 1991 Bombay 341 (Jaikisandas Balchand Pamnani and anohr v Municipal Corporation of Greater Bombay and others), was relied on by the learned Senior counsel in support of the above proposition of law, wherein it has been held that if there is material misdescription in sale proclamation as to the effect that the property 813 sq mts was describedas 244 sq.mts then, the sale itself is to be held vitiated. The exact observation in the said judgment runs as follows:- ""Admittedly the proprty measures 813.112 sq.mts. It is not admeasuring 244.91 sq.mts. True, Ex.J uses the words equivalent of "thereabout". But this is in no way an approximation to the actual size of the property. In fact, the size of the property given out in the advertisement is about ¼ th of the actual area. It is not admeasuring 244.91 sq.mts. True, Ex.J uses the words equivalent of "thereabout". But this is in no way an approximation to the actual size of the property. In fact, the size of the property given out in the advertisement is about ¼ th of the actual area. Therefore, the word for thereabout could not be taken as an approximation of the actual area of the property. Counsel for the Corporation submits that petitioners should be happy for the area sold is only a fraction of the actual size. The question is not of what reaction the petitioners should show, but of how the intending bidders looked upon the proclamation when they read the advertisement in newspapers. Fairly read, the advertisement gave the impression that one whole structure situated at a particular junction stood on land measuring 244.91 sq.mts. It is not as if the Corporation in the advertisement made it clear that they were going to auction only a part or portion of the property. They had the liberty to do so under sub-sec. (2) of S.206 of the aforementioned Act. This sub-section permits a portion of the immovable property attached to be sold if "the same can be conveniently severed". The advertisement does not indicate that the Corporation was selling a portion of the property because it could be conveniently severed. On the other hand, the intending bidders would get the impression that the entire property attached was of a far lesser area. A material description in a sale proclamation would vitiate the sale." 8. Relying on AIR (3) 1943 Lahore 129 (Bhagwan Singh Vs. Barkat Ram), the learned senior counsel would contend that a sale conducted in pursuance of a proclamation which contained vague, inacurte and misleading description of the property must seriously prejudice the judgment-debtor and cannot be allowed to stand. 9. Per contra, the learned Senior Counsel Mr.S.V.Jayaraman appearing for the respondents relying on 1961 MLJ SC 116 (Sheodhyan Singh and others v Musammat Sanichara Kuer and others), would contend that if there is any misdescription of boundaries in sale deed then, the area should prevail. 9. Per contra, the learned Senior Counsel Mr.S.V.Jayaraman appearing for the respondents relying on 1961 MLJ SC 116 (Sheodhyan Singh and others v Musammat Sanichara Kuer and others), would contend that if there is any misdescription of boundaries in sale deed then, the area should prevail. The learned senior counsel for the respondents would contend that the property attached for realization of the decree in O.S.No.172 of 1999 is M/s.Saravana Theatre at Gudiyatham, which was attached even in the year 1998 before the judgment and the judgment debtors had not raised any objection as to the fact that Saravana Theatre was not in S.No.70/1, but in S.No.70/2. Under such circumstance, even if there is any misdescription of the survey number, wherein the identity of the property sold is well established then the Court sale cannot be vitiated. The relevant observation in the said judgment by the Honourable Apex Court runs as follows:- "The contention on behalf of the appellants with respect to Re.Plot No.1060 is that it was neither included in the final decree for sale in favour of the respondents predecessors-in-interest nor in the sale certificate. Therefore, it was not open to the Courts below to grant a decree in favour of the respondents with respect to this plot. The final decree contains ten plots. It gives the Tauzi Number, the Khasra Number, the Thana Number, the Survey Number, the area and the boundaries of each plot. Among ten plots mentioned in the final decree, there is a plot No.160, but no plot bearing No.1060. In the sale certificate also the same ten plots are mentioned. The sale certificate contains the Khata number, the plot number, the area and the boundaries of each plot. There also we find No.160 but no No.1060. The High Court has held that No.160 in the final decree and in the sale certificate is a mistake for 1060. It has further held that this is a case of misdescription and not a case of disputed identity, for in this case the identity of the plot included in the final decree and sold through the sale certificate is not uncertain. It has further held that this is a case of misdescription and not a case of disputed identity, for in this case the identity of the plot included in the final decree and sold through the sale certificate is not uncertain. It has pointed out that the khata number, the area and the boundaries that are given in the final decree and in the sale certificate correspond with the khata number, the area and the boundaries that are given in the final decree and in the sale certificate correspond with the khata number, the area and the boundaries of plot No.1060. It has also pointed out that in the writ of delivery of possession to the respondents predecessors as well as in the sale deed in favour the respondents the correct plot (namely, 1060) has been mentioned. Further, the High Court has also pointed out that there is no plot bearing No.160 khaa No.97. Therefore, as the khata number,the area and the boundaries given in the final decree and in the sale certificate tally with No.1060, the identity is clearly established and there has only been a misdescription of the plot in the final decree as well as in the sale certificate by the omission of one zero from the plot number. It has been held that the misdescription of plot No.160 as 1060 is only a mistake and that will not vitiate the Court sale proceedings since there is no difficult to identify the property scheduled to the final decree and the property scheduled to the sale certificate." 10. Yet another judgment in which the learned senior counsel appearing for the respondents placed his reliance is 1997 TNLJ 379 (A.Kuppusamy Mudaliar Vs. G.Subramania Mudaliar, Sundaramurthi and Palani). In the said case the Auction Purchaser filed a petition for delivery of the property on the basis of a sale certificate. At that time the respondent filed REA.No.143 of 1981 to set aside the auction sale under Section 47 of CPC. The sale was conducted after the amendment of the Code of Civil Procedure by Act 104/76. After extracting O 21 Rule 90 CPC Sub-Rule 3, it has been held as follows:- "Undoubtedly, this special rule was brought in statute by 1967 Amendment Act. It is like a caveat emptor that the judgment debtor be vigilent watchful to vindicate pre-sale illegalities or material irregularities. After extracting O 21 Rule 90 CPC Sub-Rule 3, it has been held as follows:- "Undoubtedly, this special rule was brought in statute by 1967 Amendment Act. It is like a caveat emptor that the judgment debtor be vigilent watchful to vindicate pre-sale illegalities or material irregularities. He should not stand by to procrastinate the execution proceedings. If he so does, Rule 90(3) forwarns him that he pays penalty for obduracy and contumacy" 11. Order 20 Rule 90 of CPC runs as follows:- "Application to set aside sale on ground of irregularity or fraud:- (1)Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interest are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. (3)No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have been taken on or before the date on which the proclamation of sale was drawn up. Explanation:-The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule. Relying on the above provision of law, the learned senior counsel for the respondents would contend that the judgment debtor has not taken any steps to challenge the sale during its confirmation on the ground of irregularity or fraud played upon the Court and once the proclamation has been effected thereafter it is not open to the judgment debtor to question the attachment on the ground of material irregularity or fraud. 12. 12. The learned senior counsel to substantiate his contention that the judgment debtor having failed to take any action to set aside the sale before the date of proclamation, is not entitled to question the sale on the ground of irregularity or fraud, relied on AIR 1995 KERALA 70 (K.V.Antony v. Catholic Syrian Bank Ltd.), wherein the exact observation by the Devision Bench of the said Court runs as follows:- "Rule 90(3) of Order 21 contains yet another interdict against setting aside a court sale. It is in the following language: "No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up".This provision was brought in the code only in 1976, and the object is to make the judgment-debtor to be more circumspect and to inform the Court, right in time, on his objections. If he omits to do so without satisfactory cause, he cannot be heard to say on such objections subsequently. In Desh Bandhu Gupta v N.L. Anand & Rajender Ssingh, (1994) 1 SCC 131 : (1993 AIR SCW 3458, para 15) Supreme Court has observed that Rule 90 (3) is like a "caveat emptor that the judgment debtor be vigilant and watchful to vindicate pre-sale illegalities or material irregularities. "He should not stand by to procrastinate the execution proceedings. If he so does,Rule 90(3) fore-warns him that he pays penalty for obduracy and contumacy." 13. The same view has been emphasized in the ratio in 2000 (3) SCC 87 (Kadiyala Rama Rao Vs. Gutala Kahna Rao (dead) by LRs, and others), as follows:- " On a plain reading of the provisions thus three several factors emerge and which ought to be taken note of in the matter of setting aside the sale of an immovable property, viz., .(i) material irregularity and fraud in publishing or conducting the sale; .(ii) the Court dealing with such an application is satisfied that the applicant has sustained substantial injury by reason of such an irregularity or fraud; and (iii) no application would be entertained upon a ground which the applicant could have taken on or before the date of drawing up of the proclamation of sale. The third requirement as above needs, however, special mention by reason of the factum of incorporation of the principles analogous to the doctrine of constructive res judicata as envisaged under Section 11 of the Code. The legislative intent is clear and categorical in both the provisions as above that in the event of an intentional relinquishment of a known right, question of proceeding further would not arise." 14. So as per Order 21 Rule 90(3) of CPC, after the proclamation is over it is now not open for the judgment debtors to challenge the Court auction sale on the ground of material irregularity in describing Saravana Theatre as in S.No.70/1 instead S.No.70/2. But a pertinent point to be noted in this revision is that the evidence of R.W.1, which has been recorded in EA.No.76 of 2007 by the Executing Court, wherein R.W.1 – VAO of Gudiyatham Taluk has deposed that S.No.70/1 is a stream and Saravana Theatre is in S.No.70/2. In a categorical terms the R.W.1 – VAO would depose that Saravana Theatre is not in S.No.70/1. But a perusal of the EP proclamation (page 1 of the volume-1 of the typed set of papers produced by the revision petitioners), would go to show that the property scheduled is M/s.Saravana Theatre generator, compound wall situate in S.No.70/1 extend 0.0.2 hectors. The learned Senior Counsel would contend that Saravana Theatre is situate in about 15 cents of land in S.No.70/2. But as per the proclamation schedule, it is stated that Saravana Theatre is in or about 6 cents (0.0.02 hectare) in S.No.70/1. The learned Senior counsel would further pointed out the orders of the learned Subordinate Judge in EA.No.76 of 2007 wherein the learned Subordinate Judge has erroneously observed that S.No.70/1 denotes Saravana Theatre in S.No.70/2, which is to be set aside. No doubt the said observation in the orders passed by the learned Subordinate Judge in EA.No.76 of 2007 is against the evidence of R.W.1 – VAO. When there is an evidence on record to show that Saravana theatre is only in S.No.70/2 and not in S.No.70/1, the learned Subordinate Judge cannot observe that S.No.70/1 denotes S.No.70/2 for Saravana Theatre. 15. In fine, the following observation in the order of the Subordinate Judge in EA.No.76 of 2007 alone is set aside and in other respects the revision fails and the same is hereby dismissed. 15. In fine, the following observation in the order of the Subordinate Judge in EA.No.76 of 2007 alone is set aside and in other respects the revision fails and the same is hereby dismissed. The respondents shall take proper steps before taking delivery of the property for rectifying Survey Number and extent in the schedule to the ABJ application as well as in the proclamation and sale certificate. With this observation, this revision is disposed of. Connected Miscellaneous Petitioners are closed. No costs.