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2019 DIGILAW 131 (MAD)

Sivalingam v. Murugan

2019-01-09

T.RAVINDRAN

body2019
JUDGMENT : (Prayer: Civil miscellaneous second appeal is filed, under Order XXI Rule 90 and Section 47 read with Section 100 of the Code of Civil Procedure, to set aside the order and decreetal order, dated 30.12.2008, made in C.M.A.No.2 of 2006, on the file of the Sub Court, Karur, reversing the order and decreetal order, dated 29.04.2005, made in E.A.No.93 of 2005 in E.P.No.552 of 1990 in O.S.No.151 of 1975, on the file of the Principal District Munsif Court, Karur.) The civil miscellaneous second appeal is directed against the Judgment and decree, dated 30.12.2008, passed in C.M.A.No.2 of 2006, on the file of the Subordinate Court, Karur, reversing the fair and decreetal orders, dated 29.04.2005, passed in E.A.No.93 of 2005 in E.P.No.552 of 1990 in O.S.No.151 of 1975, on the file of the Principal District Munsif Court, Karur. 2. The suit in O.S.No.151 of 1975 has been laid by the deceased A.Chidambaram Chettiar against the deceased V.Palappa Gounder, for recovery of the lease arrears amount with interest. It is found that the said suit has ended in a decree in favour of the above said plaintiff on 10.12.1975 and the said decree has been endorsed by the First Appellate Court in A.S.No.52 of 1976. Following the same, the execution petition in E.P.No.552 of 1990 has been laid by the legal representatives of the decree-holder against the judgment-debtor i.e. the deceased V.Palappa Gounder. Pending the execution petition, the judgment-debtor having died on 26.02.1991, it is found that the execution applications in E.A.Nos.648 & 653 of 1993 had been laid for bringing the legal representatives of the deceased judgment-debtor on record in the execution proceedings. Pending the execution petition, the judgment-debtor having died on 26.02.1991, it is found that the execution applications in E.A.Nos.648 & 653 of 1993 had been laid for bringing the legal representatives of the deceased judgment-debtor on record in the execution proceedings. Following the same, it is found that inasmuch as the first respondent, in particular, had not entered appearance in the execution proceedings, despite the service effected, a paper publication has been ordered and consequently, he had been set ex parte on 21.01.1998 and thereafter, the petition property had been brought for auction and originally, it is found that the upset price has been fixed at Rs.1,80,000/- and thereafter, the upset price has been lowered down to Rs.1,60,000/-, thereafter, further reduced to Rs.1,00,000/- and it is also noted that in the interregnum, the decree-holders have also obtained permission to take part in the auction sale and despite the same, the auction could not be conducted one way or the other and finally, the sale has been conducted on 21.04.2004 in favour of the auction purchaser, who is the fourth respondent herein and the same had been confirmed on 26.04.2004 and the execution petition had been closed on 28.06.2004. It is found that the first respondent had preferred the application in E.A.No.93 of 2005 seeking to set aside the auction sale conducted in respect of the petition property, on the ground of illegality and fraud. It is found that the first respondent had preferred the application in E.A.No.93 of 2005 seeking to set aside the auction sale conducted in respect of the petition property, on the ground of illegality and fraud. The above said application has been preferred by the first respondent, under Order XXI Rule 90 and Sections 47 and 151 of the Code of Civil Procedure, alleging that mainly, no notice had been served upon him either in the applications taken by the legal representatives of the decree-holder, while bringing the legal representatives of the judgment-debtor on record in the execution proceedings and further, contended that no notice had been served on him when the upset price had been lowered down twice and he has also not been given any notice, while granting permission to the decree-holder to take part in the auction sale and accordingly, contending that by way of the above said fraud and illegality committed by the decree-holders and thereby, the petition property of a considerable value had been sold in the Court auction at a low price, accordingly, seeking to set aside the Court auction sale conducted in respect of the petition property, according to him, he had laid the above said application. 3. 3. The above said application of the first respondent had been resisted by the decree-holders as well as the Court auction-purchaser inter alia mainly pleading that due notice had been served on the first respondent and it is stated that the notice had been served on his wife in the applications preferred to bring the legal representatives of the deceased judgment-debtor on record and furthermore, it is also stated that inasmuch as the notice sent in the execution proceedings has been returned, as a last chance, the Court had ordered paper publication as a substituted service and even thereafter, he having not participated in the execution proceedings, had been set ex parte and it is stated that the Court has got the power to reduce the upset price, when there is no bidder to purchase the property at the auction sale and also contended that no prejudice has been shown on the part of the first respondent in the reduction of the upset price and it is further contended that despite having knowledge about the petition property being brought to auction sale through Court process and having allowed the fourth respondent to take part in the auction sale and the auction sale conducted in favour of the fourth respondent having been confirmed by the Court, the application had been preferred by the first respondent only to defeat the decree-holders as well as the fourth respondent from enjoying the decree obtained one way or the other and the auction sale conducted in respect of the petition property is not tainted with any illegality as projected and accordingly, contended that the application preferred by the first respondent is hit by the law of limitation, and prayed for the dismissal of the application. 4. The Executing Court, on an appreciation of the materials placed on record by the respective parties, was pleased to dismiss the above said application preferred by the first respondent in E.A.No.93 of 2005. The first respondent preferred the civil miscellaneous appeal and the same having been entertained by the First Appellate Court, aggrieved over the same, it is found that the revision petitioners have come forward with the present civil miscellaneous second appeal. 5. The first respondent preferred the civil miscellaneous appeal and the same having been entertained by the First Appellate Court, aggrieved over the same, it is found that the revision petitioners have come forward with the present civil miscellaneous second appeal. 5. As above noted, E.A.No.93 of 2005 has been laid by the first respondent, under Order XXI Rule 90 and Sections 47 and 151 of the Code of Civil Procedure, for setting aside the sale conducted in respect of the petition property by the Court on 21.04.2004 as the same is a fraudulent one and irregular and for the appropriate relief’s. 6. It is mainly contended by the first respondent that no notice has been served upon him either in the applications preferred to bring the legal representatives of the judgment-debtor on record or in the execution proceedings and further contended that the paper publication had not been effected in the area, where he is residing along with his family members i.e. at Bombay and therefore, the paper publication is not lawfully made and therefore, the ex parte order passed, following the same, is liable to be set aside and also contended that no proper notice had been served on him, while lowering down the upset price as per law and the decree-holders and the auction purchaser had colluded together and brought out the petition property belonging to him and his family members to auction sale at a very low price and the above said acts of the decree-holders being tainted with illegality and fraud, according to him, the auction sale conducted in respect of the petition property should be set aside. 7. Per contra, the decree-holders and the auction purchaser resisted the above said application of the first respondent contending that due and proper notice had been served on the first respondent in all the proceedings of the execution petition as per law and further, contended that the Court had rightly reduced the upset price on noting that the no bidder had turned up for purchasing the petition property and no prejudice is shown to be caused to the first respondent by way of reducing the upset price and also contended that the application preferred by the first respondent is hit by the law of limitation and therefore, prayed for the dismissal of the above said application. 8. 8. As could be seen from the materials placed on record, it is found that the first respondent is employed at Bombay and residing with his family members permanently at Bombay. Further, as could be seen from the evidence adduced in the matter, it is only the first respondent's brother, who is residing and the first respondent is not residing in the petition property brought for auction sale and in such view of the matter, as rightly determined by the First Appellate Court, it does not stand to reason as to how the service could have been effected upon the first respondent's wife in the applications preferred to bring the legal representatives of the deceased judgment-debtor on record in E.A.Nos.648 & 653 of 1993. On the above said ground alone, it is found that the first respondent has not been duly served even in the applications preferred to bring the legal representatives of the deceased judgment-debtor on record. 9. In addition to that, in the main execution petition also, though service had been sought to be effected on the first respondent several times, the notice had not been served on him. Thereafter, it is found that a substituted service had been ordered and accordingly, the paper publication was ordered to be effected in Dinamalar daily and the publication was effected only in Karur District and not in the area, where the first respondent is residing permanently i.e. at Bombay, in such view of the matter, as rightly put forth by the first respondent, even the paper publication effected in the execution proceedings has not been done in the manner known to law, particularly, when the paper publication is confined to Karur District and not extended to the area, where the first respondent is residing, in such view of the matter, the First Appellate Court, on an appreciation of the above said factual aspects of the matter, rightly determined that no proper notice had been served on the first respondent in the execution proceedings as such and thereby, it is found that the first respondent had been wrongly set ex parte, without due service on him in the matter as per law. 10. 10. That apart, as could be seen from the materials placed on record, originally, the upset price has been fixed at Rs.1,80,000/- and thereafter, it had been reduced to Rs.1,60,000/-, by way of an order, dated 15.04.2002, in E.A.No.450 of 1999. Admittedly, no notice has been served on the first respondent with reference to the same. It is also noted that the decree-holders had obtained permission to take part in the auction sale and despite the same, the decree-holders had not participated in the Court auction one way or the other and concerted to see the upset price is again reduced further and accordingly, it is noted that when the Court ordered further process in the execution proceedings, on noting that no bidders are available, the upset price has been further lowered down to Rs.1,00,000/- and thereafter, when the auction was conducted, the fourth respondent had been declared as the successful bidder and the same had been confirmed by the Court subsequently. Thus, as rightly put forth by the first respondent's counsel, when the Court endeavours to settle the terms of the proclamation of the sale one way or the other i.e. by reducing the upset price or any other mode, should ensure that due notice has been sent to all concerned to put forth their objections with reference to the same. Thus, when the notice is contemplated with reference to the settlement of the terms of proclamation of the sale under Order XXI Rules 54(1-A) and 66 of the Code of Civil Procedure and when it is noted that no notice has been served upon the first respondent, when the upset price had been lowered down and the terms of the proclamation of the sale has been settled at the relevant point of time, it is seen that without notice to the first respondent in particular, the petition property had been brought for sale and in such view of the matter, the first respondent's right having been seriously affected on account of the same, it is seen that he is entitled to challenge the Court auction sale. Merely because his brother had been served, that by itself, would not be sufficient to contend that he is also bound by the process taken in the execution proceedings. Merely because his brother had been served, that by itself, would not be sufficient to contend that he is also bound by the process taken in the execution proceedings. When the first respondent has alleged that all is not well with his brother and his brother had changed sides, in such view of the matter, it is found that when the law requires that notice should be given to all the parties concerned at the time of settling the proclamation of the sale, when admittedly, as above discussed, no proper and due notice has been served on the first respondent right from the inception i.e. in the applications to bring the legal representatives of the deceased judgment-debtor on record in the execution proceedings as well as in the process taken for the reduction of the upset price, in all, it is found that the first respondent has been kept away from the execution proceedings as well as in the process taken for the reduction of the upset price initiated by the decree-holders deliberately one way or the other. Thus, it is found that there is a clear violation of Order XXI Rules 54(1-A) and 66 of the Code of Civil Procedure and the above said factors had been taken into consideration by the First Appellate Court for coming to the conclusion that the Court auction sale conducted thereby is tainted with illegality and fraud. 11. Thus, it is found that there is a clear violation of Order XXI Rules 54(1-A) and 66 of the Code of Civil Procedure and the above said factors had been taken into consideration by the First Appellate Court for coming to the conclusion that the Court auction sale conducted thereby is tainted with illegality and fraud. 11. It is also contended by the counsel appearing for the first respondent that considering the nature and the extent of the petition property brought for Court auction sale being a vast area, according to him, when the decree obtained by the decree-holders is only to the tune of Rs.9,434.50 with interest, even as on the date of the Court auction sale, if the decree amount is computed with interest, according to him, the entire property should not have been brought for the Court auction sale and only such portion of the property that would be sufficient to satisfy the decreetal amount should have been brought for sale and when there was no effort on the part of the Executing Court to ensure that the petition property brought for sale is indivisible or cannot be divided further, the endeavour of the Executing Court in bringing the entire petition property for auction sale for satisfying the above said decreetal amount is contrary to the provisions of Order XXI Rule 64 C.P.C. and in this connection, he placed strong reliance upon the decision in Arunachalathammal @ Chellammal and another vs. Balasubramanian (Died), reported in 2018 (6) CTC 544. 12. As rightly pointed out by the first respondent's counsel, considering the extent of the petition property brought for sale, when there is no determination that the above said property is indivisible, it is seen that a portion of the property would have be sufficient to satisfy the decree in question and in such view of the matter, when the Executing Court has failed to explore the said option available under Order XXI Rule 64 C.P.C., the endeavour of the Executing Court, at the instance of the decree-holders in bringing the entire petition property for auction sale, is found to be not in accordance with law and on the above said ground alone, it is found that the auction sale is liable to be dismissed. 13. 13. Furthermore, the Executing Court is found to have discountenanced the application preferred by the first respondent on the ground of limitation as according to the Executing Court, the first respondent had not come forward with the application to set aside the sale within the time allowed by law. As above noted, the application had been preferred by the first respondent not only under Order XXI Rule 90 C.P.C., but also under Sections 47 and 151 C.P.C. In the light of the above said position, it is found that when the first respondent is endeavouring to challenge the auction sale on the ground of illegality and fraud and also brought home the above said grounds, as above discussed and when it is noted, in particular, that no proper and due notice has been served upon the first respondent in the execution proceedings right from the inception and when it is noted that there has been a complete want of notice under Order XXI Rule 54(1-A) and 66 C.P.C. and when it is further noted that the application has been preferred under Section 47 C.P.C., it is found that in respect of such an application, the Article 137 of the Limitation Act would apply and so viewed, it is found that that application of the first respondent would not be hit by the law of limitation and in this connection, an useful reference may be made to the decision in Natarajan vs. Chandmull Amarchand by Power of Attorney, K.Milopchand and another, reported in AIR 1971 Mad 474 . 14. Lastly, it is contended by the first respondent's counsel that despite the First Appellate Court having set aside the auction sale, at his instance, it is argued that the auction-purchaser has not chosen to prefer any appeal against the same and on the other hand, it is only the decree-holders, who have preferred the appeal and accordingly, it is contended that the auction purchaser is not aggrieved by the setting aside of the auction sale as such and in such view of the matter, when the decree-holders have failed to establish that due and proper notice had been effected in the execution proceedings right from the inception, in all, according to him, the execution proceedings are tainted with illegality and fraud and the consequent auction sale conducted, in such proceedings, is liable to be set aside. The above said argument put forth by the first respondent's counsel seems acceptable. 15. Considering the reasons afore stated, it is found that the First Appellate Court, on an appreciation of the materials placed on record in the right perspective, noting that no notice had been served upon the first respondent in the execution proceedings right from the inception and also while reducing the upset price and also while settling the terms of the proclamation of sale, in all, is found to have rightly accepted the first respondent's case in holding that the execution proceedings and the auction sale are tainted with illegality and fraud and consequently, set aside the auction sale as prayed for. No substantial question of law is found to be involved in this civil miscellaneous second appeal. 16. In the light of above said discussions, I do not find any reason to interfere with the above said determination of the First Appellate Court and accordingly, the civil miscellaneous second appeal is found to be devoid of merits and the same is liable to be dismissed. 17. Resultantly, the civil miscellaneous second appeal is dismissed with costs. Consequently, connected miscellaneous petition is closed.