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2014 DIGILAW 2992 (MAD)

M. Muthurakku v. Athi Banjanathan

2014-09-01

R.KARUPPIAH

body2014
Judgment 1. The Civil Miscellaneous Second Appeal has been filed by the appellant/Judgment-Debtor against the order and decretal order passed by the Subordinate Judge, Sivagangai in C.M.A.No.4 of 2012, dated 03.01.2013 confirming the order and decretal order made in E.A.No.179 of 2011 in E.P.No.10 of 2008 in O.S.No.204 of 2000 dated 16.12.2011,on the file of District Munsif, Sivagangai. 2. For the sake of convenience, the applicant/judgment-debtor in the execution application in E.A.No.170 of 2011 referred to as the appellant and the first respondent/decree-holder in the execution applicat8on referred to as first respondent and Court Auction Purchaser/second respondent in the execution application referred as second respondent hereafter. 3. Heard the learned counsel appearing on either side and perused the materials available on record. 4. This Court admitted the Civil Miscellaneous Second Appeal on the following Substantial questions of law: "i. Whether the courts below are legally correct in so far as it has omitted to invoke its powers available under Order 21 Rule 92(2) C.P.C., calling upon the appellant to pay the deficit amount for setting aside the execution sale? ii) Whether the fixing of the upset price as Rs.12,000/-in the sale proclamation for 33 cents of agricultural land amounts to fraud and irregularity as contemplated under Order 21 Rule 90 CPC when the property is worth more than Rs.66,000? iii) Whether the execution court is bound to set aside the "Execution Sale" dated 11.10.2011 after collecting the deficit amount by invoking Order 21 Rule 92(2) CPC, when the appellant has deposited the sale proclamation amount of Rs.12,000/-on 25.11.2012, much earlier to 16.12.2011, the date of confirmation of sale? iv) Whether the execution court can correct the arithmetical error of calculating compound interest by the respondent/execution petition when the decree directs 6% simple interest as future interest? v) When the suit is for foreclosure of mortgage and sale of mortgage property whether the principles of Order 34 Rule 5 CPC is also applicable in the present case as this suit itself is for mortgage money? 5. The learned counsel for the appellant filed M.P(MD)No.2 of 2013 before this Court to permit the appellant to raise additional substantial questions of law without any particulars of the above said alleged additional substantial questions of law. At the time of arguments also, the learned counsel has not mentioned about the relevant questions of law ommitted to be framed by this Court. At the time of arguments also, the learned counsel has not mentioned about the relevant questions of law ommitted to be framed by this Court. On a perusal of materials available on record revealed that already sufficient substantial questions of law have been framed and there is no need to form any additional substantial questions of law. Therefore the above said M.P(MD)No.2 of 2013 is liable to be dismissed. 6. The first respondent/Decree-holder filed an execution Petition in E.P.No.10 of 2010 on the basis of the decree passed on 27.12.2004 in O.S.No.204 of 2010 for recovery of a sum of Rs.11,308/- and if failed to pay the amount, brought the appellant's property in Court auction sale and recover the above said decree amount. Since the appellant/Judgment-Debtor has not paid the decree amount, the executing Court brought the appellant's property in court auction sale and the second respondent herein purchased the property in the court auction sale held on 11.10.2011 and posted for confirmation of the above said court auction sale. 7. After court auction sale, the appellant herein/Judgment-Debtor filed an application in E.A.No.170 of 2011 on 31.10.2011 under Order 21 Rule 90 of Civil Procedure Code to set aside the above said court auction sale and to dismiss the execution Petition. According to the appellant, the first respondent/decree-holder claimed excessive amount of interest in the execution petition but the executing Court has wrongly rejected the above said contention of the appellant. It is also contended that the value of the property at the time of court auction sale is about Rs.66,000/-. But the executing Court has fixed the upset price as Rs.12,000/- and sold the property in the court auction sale to the second respondent herein for a sum of Rs.13,500/-. Further the sale notice was also not duly served to the appellant and therefore the above said court auction sale is not valid and the appellant sustained injury by the above said irregularities. It is also averred in the affidavit that the appellant is ready to deposit Rs.12,000/- by way of lodgment schedule. Therefore prayed for to set aside the above said court auction sale and to dismiss the execution petition, for the above said irregularities. 8. It is also averred in the affidavit that the appellant is ready to deposit Rs.12,000/- by way of lodgment schedule. Therefore prayed for to set aside the above said court auction sale and to dismiss the execution petition, for the above said irregularities. 8. The respondents have contended before the executing Court that the necessary sale notices were served as per Rules to the appellant and the property was also correctly tested by the Court officials and the upset price was also fixed correctly and then only, the court auction sale was held on 11.11.2011. According to the respondents, and the second respondent herein has successfully bidded in the court auction sale and therefore absolutely there is no irregularities as alleged by the appellant. 9. The executing Court after considering both side contention and finally held as follows: “5. On perusal of the records, it transpires that in the main E.P sale notice was refused by the Petitioner on 25.11.2009 thereby she was set exparte on 18.12.2009. And the court notices were affixed as the Petitioner has gone to Chennai the endorsement made in the court notice show that fact. Thereafter the upset price was fixed vide order in E.A.No.16 of 2010 dated 26.08.2010 as against which also the Petitioner filed petitions before this Court to set aside that order but the same were rejected vie order dated 10.10.2011 in E.A.No.141 of 2011 and E.A.No.142 of 2011. Further the matter was keeping on adjourned and the property was sold on 11.10.2011 to the second respondent, the sale warrant as well as the notice would demonstrate the facts that the proclamation was properly held and property was brought for auction in a proper manner. When the matter was posted for confirmation of sale on 12.12.2011 this petition came to be filed by this petitioner alleging that there is a serious irregularity and fraud has been committed while conducting the court auction. It is very pertinent to note that except the verbatim reproduction as irregularity and substantial injury nothing has been averred in the affidavit of this petitioner. On the contrary the court records would clinchingly reveal the fact that the procedures have been scrupulously followed. Apart from that to strengthen the plea of the petitioner has neither examined any witness nor adduce any documentary evidence. On the contrary the court records would clinchingly reveal the fact that the procedures have been scrupulously followed. Apart from that to strengthen the plea of the petitioner has neither examined any witness nor adduce any documentary evidence. In the considered view this Court holds that this petition is devoid of merit and deserves to be dismissed.” 10. Aggrieved by the above said finding of the executing Court, the appellant herein preferred a Civil Miscellaneous Appeal in C.M.A.No.4 of 2012 before the Subordinate Court. The Subordinate Judge also considered both side contentions and finally dismissed the appeal and confirmed the order of the executing Court, by giving reasons as follows: “10. Admittedly, no document produced to prove the petition mentioned property was sold before the institution of the suit and the judgment debtor have no saleable interest and the Petitioner sustained by substantial injury irregularity. Like that, before concluding sale the lower court issued sale notice to this petitioner and the same was refused and she was set exparte on 18.12.2009.The Petitioner's husband one Muniappan is an advocate and closely watch all the proceedings in E.P. proceedings (i.e.) notice, sale notice, sale papers, sale proclamation, sale. In respect of this there is no denial. Hence the petitioner having knowledge about the execution proceedings. Various petitions filed to question about the proceedings of execution petition in various stages. That Petitions in E.A.No.121 of 2008, 152 of 2009, 153 of 2009, 142/2011 are dismissed. The Petitioner questioned about the subsequent interest awarded not coming within the purview of Section 34 of Civil Procedure Code. Originally the suit in O.S.No.204/2000 preliminary decree was passed on 30.4.2000. Final decree was passed on 27.12.2000. But till this date no appeal have been preferred against the interest awarded in decree by way of this appeal. It cannot be questioned. The particulars about what kind of irregularity and fraud committed upon is not stated by specific averments. With the available record in this appeal, this Court finds that there is no irregularity in conducting sale. Hence this Civil Miscellaneous Appeal is liable to be dismissed.” 11. Therefore from the above said discussion, it is clear that both the Courts below have concurrently held that the appellant herein has failed to prove any irregularity in the court auction sale and therefore rejected all the contentions of the appellant and dismissed the execution application filed by the appellant. 12. Therefore from the above said discussion, it is clear that both the Courts below have concurrently held that the appellant herein has failed to prove any irregularity in the court auction sale and therefore rejected all the contentions of the appellant and dismissed the execution application filed by the appellant. 12. The learned counsel for the appellant mainly contended before this Court that both the courts below have not considered the fact that the first respondent/decree-holder claimed interest excessively and not in accordance with Section 34 of Civil Procedure Code and also under Section 13-A of the Agricultural Debt Relief Act and hence the decree passed by the trial court is erroneous and on that ground alone, the execution Petition itself is liable to be rejected. The learned counsel further submitted that necessary notices have not been duly served on the appellant and only because of husband of the appellant, who is a practicing Advocate in the above said Court, cannot presume that the appellant had knowledge about the proceedings and therefore the findings of the Court below are not correct. 13. Further, the learned counsel for the appellant submitted that the value of the property sold in court auction sale was several times higher than that of the decree amount and the executing Court has failed to give an opportunity to the appellant to prove her case about the market value of the property and further failed to grant sufficient time to the appellant to pay or to deposit the balance decree amount into the Court and on that ground also the Court auction sale is liable to be set aside. The learned counsel further pointed out that the appellant had deposited Rs.12,000/- on 25.11.2011 as per calculation and Rs.14,424/- alone has to be paid as per order 34 Rule 5(1) C.P.C. Further, the learned counsel submitted that the appellant is ready to deposit the balance amount and hence prayed for allowing the appeal and set aside the court auction sale. 14. 14. Per contra, the learned counsel appearing for the respondents would submit that the appellant's husband one Muniappan is a practicing Advocate and he alone filed the above said application in E.A.No.179 of 2011 on behalf of the appellant and he argued in the above said application before the executing Court and therefore the contention of the appellant that no notice was duly served and the appellant has not aware of the execution proceedings are all not correct. Further the learned counsel for the respondents would submit that the appellant herein refused to receive notices issued in all the E.P. Proceedings. Further the appellant herein filed several execution applications in E.A.No.121 of 2008, 152 of 2009, 153 of 2009, 142 of 2009 and all the above said applications were already dismissed and therefore the appellant has well aware of all the above said proceedings and the husband of the appellant also watched all the above said proceedings and hence the contention of the appellant cannot be accepted. Further the learned counsel for the respondents would submit that the appellant cannot raise the question of interest in this stage since the above said preliminary decree and final decree have become final and the appellant failed to prefer any appeal against the above said decree and judgment passed by the trial Court and hence the above said contention raised by the appellant also cannot be accepted. The learned counsel further pointed out that the appellant cannot claim any right to set aside the court auction sale under Order 34 Rule 5(1) C.P.C., in this stage and also without deposit amount prior to filing of the application. Further, the appellant filed this application only under Order 21 Rule 90 C.P.C and hence the appellant cannot claim any right under Order 34 Rule 5(1) C.P.C. 15. On a careful perusal of the findings of the courts below revealed that the appellant's husband is a practicing Advocate before the Trial Court and also necessary notices were duly sent by executing Court to the appellant, but the appellant had refused the above said notices. Further, it is revealed that this appellant had already filed several applications in E.A.Nos.121/08, 151/09, 153/09 and 142 of 2011 challenging the execution proceedings. Therefore the appellant herein is well aware of the execution proceedings as rightly pointed out by the learned counsel for the respondents. 16. Further, it is revealed that this appellant had already filed several applications in E.A.Nos.121/08, 151/09, 153/09 and 142 of 2011 challenging the execution proceedings. Therefore the appellant herein is well aware of the execution proceedings as rightly pointed out by the learned counsel for the respondents. 16. The main contention of the appellant is that the market value of the appellant's property sold in court auction sale was Rs.66,000/-but the executing Court has fixed the upset price at Rs.12,000/- which is very low and on that ground also the above said sale is not valid in law. As rightly pointed out by the learned counsel for the respondents, except the averments made in the affidavit absolutely no oral or documentary evidence adduced by the appellant to prove the above said fact. Therefore both the Courts below correctly rejected the above said contention of the appellant. 17. The learned counsel appearing for the appellant mainly contended that the appellant herein wrongly filed this execution application under Order 21 Rule 90 of Civil Procedure Code instead of order 34 Rule 5 of C.P.C. Further the learned counsel submitted that the appellant deposited Rs.12,000/- before the executing Court after filing this application. Therefore both the Courts below have not considered the above said fact properly and on that ground also the orders passed by the both the Courts below are liable to be set aside. 18. Admittedly, the appellant herein filed the execution application only under Order 21 Rule 90 of Civil Procedure Code to set aside the sale. The above said application was filed on 31.10.2011. The court auction was held on 11.10.2011 prior to the filing of the above said execution application. In the above said circumstances, the appellant has not paid any amount at the time of filing of the above said application. The learned counsel appearing for the appellant submitted that after filing of the above said application, the appellant has deposited the above said amount of Rs.12,000/- on 25.11.2011. Admittedly the property was sold on 10.11.2011 in the above said court auction sale for a sum of Rs.13,500/-. Therefore the appellant has not paid the entire sale consideration with other expenses within time (i.e.,) before filing of the application to set aside the sale. 19. Admittedly the property was sold on 10.11.2011 in the above said court auction sale for a sum of Rs.13,500/-. Therefore the appellant has not paid the entire sale consideration with other expenses within time (i.e.,) before filing of the application to set aside the sale. 19. The learned counsel appearing for the appellant relied on a decision reported in 2000(II) CTC 248 (Kharaiti Lal vs. Raminder Kaur and others) and submitted that the appellant is entitled to invoke the provisions of order 34 Rule 5 of Civil Procedure Code and make the necessary deposits to save the property from being transferred to a third person in execution of the decree passed in the mortgage decree. The learned counsel further pointed out that the sale does not become absolute or irrevocable merely on passing an order confirming the sale under Order 21 Rule 91 of Civil Procedure Code, but it would attain finality on the disposal of the appeal, if any, filed against the order refusing to set aside the sale and therefore the appellant is entitled to pray for to set aside the court auction sale by depositing the amount under Order 34 Rule 5 of Civil Procedure Code. 20. A careful reading of the above said decision reveal that the facts of the above said case are not applicable to the facts of the present case. In the instant case, as already discussed, the appellant has participated in the above said proceedings and filed several applications and all the applications were dismissed. Further the appellant's husband, who is a practicing Advocate filed this application before the executing Court, but at the time of filing the application, the appellant has not deposited the sale consideration. Only after several days, On 25.11.2010 deposited a sum of Rs.12,000/- alone and not the entire sale consideration amount with other expenses. Therefore the above said decision is not helpful to the appellant. 21. From the above said discussion, this Court is of the considered view that the above said court auction sale cannot be set aside as contended by the learned counsel for the appellant since the appellant has miserably failed to prove all the contentions raised by the appellant, as concurrently held by both the Courts below. 21. From the above said discussion, this Court is of the considered view that the above said court auction sale cannot be set aside as contended by the learned counsel for the appellant since the appellant has miserably failed to prove all the contentions raised by the appellant, as concurrently held by both the Courts below. From the above said discussions, all the substantial questions of law framed by this Court are to be answered as against the appellant and in favour of the respondents. Therefore the Civil Miscellaneous Second Appeal is liable to be dismissed and to be confirmed the concurrent findings of the Courts below. 22. In the result, the Civil Miscellaneous Second Appeal is dismissed. Consequently connected Miscellaneous Petitions are dismissed. No order as to costs.