IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09/03/2006
CORAM
THE HON'BLE MR.JUSTICE M.JAICHANDREN
CRP. (NPD) No.2286 of 2005
and
C.M.P.No.20592 of 2005
M.Rangasamy .... Petitioner
-Vs-
1. R.C.Ramasamy
2. S.A.Jaganathan ... Respondents
PRAYER: Civil Revision Petition is filed under Section 115 of Civil
Procedure Code against the Order and decretal order of the learned
Subordinate Judge, Namakkal, in C.M.A.No.16 of 2005, dated 14.09.2005 ,
confirming the Order and Decretal Order of the learned District Munsif,
Rasipuram, in R.E.A.No.178 of 2004 in R.E.P.No.243 of 1995 in O.S.No.176 of
1983, dated 23.06.2005.
!For petitioner : M/s. Dr.R.Gopinath,
S.V.Karthikeyan & G.Chandrasekar
^For respondents: Mr.N.Manokaran
:O R D E R
This Civil Revision Petition is filed under Section 115 of
Civil Procedure Code against the Order and decretal order of the learned
Subordinate Judge, Namakkal, in C.M.A.No.16 of 2005 dated 14.09.2005,
confirming the Order and Decretal Order of the learned District Munsif,
Rasipuram, in R.E.A.No.178 of 2004 in R.E.P.No.243 of 1995 in O.S. No.176 of
1983 dated 23.06.2005.
2. Heard the learned counsel for the petitioner as well as the
respondents.
3. The case of the petitioner is that the first respondent herein
filed O.S.No.176 of 1983 on the file of District Munsif, Rasipuram, to recover
Rs.27,180/-. The suit was decreed and the first respondent had filed an
execution petition in R.E.P.No.243 of 1995 and brought the properties of the
petitioner, namely, the mill and the house, to court auction. The properties
were taken in auction by the second respondent for a sum of Rs.75,400/- and
the sale was also confirmed. The Auction purchaser filed an application
R.E.A.No.178 of 2004 in R.E.P.No.243 of 1995 for delivery of possession.
4. The petitioner further states that even before the delivery of
possession was effected, he filed R.E.A.No.1324 of 2001 in R.E.P.No.243 of
1995 under Section 47 of the Civil Procedure Code to set aside the sale. When
the application was posted for hearing on 18.08.2003, his counsel could not
attend the hearing and therefore, the petition was dismissed. He further
states that he had filed an application to restore the application E.A.No.1324
of 2001 which was dismissed for default. While the said application was
pending, the Executing Court directed the delivery of property to the second
respondent herein. The petitioner has also filed Civil Miscellaneous Appeal.
No.16 of 200 5, against the order made in R.E.A.No.178 of 2004 in R.E.P.No.243
of 1995.
5. In his affidavit filed in the Civil Miscellaneous
Petition.No.20 592 of 2005, he has stated that the property is worth over
Rs.10,00,0 00/- and the auction was taken for a meagre amount of Rs.75,400/-
and that the appellate Court has jurisdiction to set aside the order of the
District Munsif and that there is no time limit for moving an application. He
has further averred that without disposing of his application for restoration,
the order for delivery of possession ought not to have been passed.
6. The petitioner has further stated in his affidavit that the
respondents had contended that an appeal is not maintainable and that only a
revision had to be filed. Further, the learned Sub-ordinate Judge, Namakkal,
had dismissed the appeal holding that the appeal was not maintainable.
Therefore, the petitioner was constrained to file the present Civil Revision
Petition.
7. On the contrary, the case of the respondents is that the first
respondent herein had filed the suit in O.S.No.176 of 1983 for recovery of
money as against the petitioner and that the suit was decreed as early as
18.04.1984. He further states that the petitioner herein having suffered a
decree, had failed to pay the decree amount, which necessitated the first
respondent / decree holder to file the petition to execute the said decree.
Accordingly, on 28.07.1995, he had filed R.E.P.No.243 of 1995 to attach and to
bring the property of the Judgment debtor for sale by court auction to realise
the decree amount. He further states that the petitioner having received the
notice, had failed to file counter the statement in R.E.P .No.243 of 1995 and
hence, he was called absent and set exparte on 31.01.1996. Thereafter, the
properties were attached on 06.03.1996.
8. It is further stated that the first respondent /decree holder
had filed the sale papers and the proclamation of sale notice was issued on
03.10.1996 and the same was refused by the petitioner/ Judgment debtor on
06.12.1996. Hence, he was set ex parte and the sale proceeded with on
20.01.1997.
9. It is further stated by the second respondent herein that on
20.0 2.1997, the Executing Court fixed the upset price at Rs.4,00,000/- and
ordered for sale. Since there were no bidders, during that auction, the upset
price had been reduced on various occasions in the subsequent auctions and the
details are as follows:-
“09.11.1997 R.E.A.No.1363 of 1997 the amount
has been reduced to Rs.3,00,000/-
27.03.1998 R.E.A.No.294 of 1998 the amount
has been reduced to Rs.2,50,000/-
19.08.1998 R.E.A.No.1148 of 1998 the amount
has been reduced to Rs.2,10,000/-
16.04.1999 R.E.A.No.2015 of 1998 the amount
has been reduced to Rs.1,50,000/-
16.11.1999 R.E.A.No.1743 of 1999 the amount
has been reduced to Rs.1,25,000/-
17.04.2000 R.E.A.No.356 of 2000 the amount
has been reduced to Rs.1,00,000/-
17.10.2000 R.E.A.No.1629 of 2000 the amount
has been reduced to Rs.75,000/-“
10. The second respondent further states that the upset price was
finally reduced to Rs.75,000/- in view of the fact that no one offered to
accept the upset price fixed by the Court on the earlier dates fixed for the
sale. He further states that the upset price had been reduced to Rs.75,000/-
only after giving notice to the petitioner / Judgment Debtor but he did not
attempt to question the same at any point of time and in the manner provided
by law. He further states in pursuance to the order, dated 17.10.2000, the
sale was held on 20.12.200 0 wherein he had participated and the amount had
been accepted in the court auction sale, and on his depositing the 1/4th of
sale consideration of Rs.18,850/- , the matter was posted for confirmation of
sale on 06.04.2001 and even after the sale, opportunity was available to the
petitioner under law in the form of Order 21, Rule 89, Code of Civil Procedure
to deposit the entire sale amount. Instead, the petitioner sought to set
aside the order in R.E.A.No.1324 of 2001 with the mala fide intention of
dragging on the matter and had managed to drag on the matter for nearly two
and half years. Thereafter, the said petition was dismissed for default on
18.08.2003. In view of the said dismissal of the petition filed under Section
47 of Code of Civil Procedure, the Executing Court was pleased to confirm the
sale on 18 .08.2003 and had also issued the sale certificate as provided for
under Order 21 Rule 94 of Civil Procedure Code.
11. He further states that the expression “an application is made
and disallowed ” in Order 21 Rule 95 Code of Civil Procedure covers not only a
case where the application was disallowed on merits but also disallowed for
any other reason, such as for default.
12. The second respondent further states that the right, title and
interest of the revision petitioner/Judgment Debtor passes on the court sale
and he has ceased to be the owner of the property on the date of confirmation
of the sale by the court and that alleged irregularity, if any, in the
execution proceedings, are cured by the sale certificate. Accordingly, on
issuance of the sale certificate, the second respondent’s title in the
property becomes complete and he is entitled to apply for possession of the
property purchased. He further states that, on 21.10.2003, he filed a
petition for possession under Order 21 Rule 95 Code of Civil Procedure in
R.E.A.No.178 of 2004. The petitioner herein entered appearance and filed his
counter. Finally the said petition was allowed as prayed for on 23.06.2005.
13. It is also the case of the second respondent that the order
granting delivery in R.E.A.No.178 of 2004 is consequential in nature and
cannot be questioned before any forum, especially, when the orders made in the
earlier proceedings have not been challenged by the petitioner / Judgment
Debtor. He further states that except the orders made in the petition filed
under Order 21 Rules 72 and 92, Code of Civil Procedure, no appeal could be
entertained either under Order 43 Rule 1 (j) or under Order 41 Rule 1 of Code
of Civil Procedure. He further states that the petitioner has filed an appeal
under Order 41 Rule 1, Code of Civil Procedure before the Sub-court, Namakkal,
in CMA.No.16 of 2005. It is his case that the order made under Order 21 Rule
95 Code of Civil Procedure is not appealable and it cannot be challenged by
way of appeal and it cannot be challenged by way of an appeal. Therefore, the
appeal filed by the petitioner before Sub-Court, Namakkal, in Civil
Miscellaneous Appeal No.16 of 2005, dated 14.11.2005, is misconceived and not
maintainable under law. Therefore, the order of dismissal of the Civil
Miscellaneous Appeal by the learned Sub-Ordinate Judge, Namakkal, filed under
Order 41 Rule 1 holding that the appeal as not maintainable is correct in law.
14. The second respondent also states that, it is pertinent to
point out at this juncture that, at the instance of the petitioner herein, his
sons, namely, R.Selvaraju and R. Arulkannan, had filed a petition to set
aside the sale under Order 21, Rule 90,97,101 and Section 15 1, Code of Civil
Procedure and the same was rejected by the trial Court on the ground of
maintainability.
15. Aggrieved by the said rejection by the trial Court on
06.12.2005 , he filed a revision under Article 227 of the Constitution of
India in Civil Revision Petition.No.2250 of 2005. It is the case of the
second respondent herein that the said revision is not maintainable in law in
view of the statutory bar under Order 21 Rule 90 (3) of Code of Civil
Procedure.
16. It is stated by him that the said Civil Revision
Petition.No.225 0 of 2005 is also pending before this court, without having
been admitted, till date. It is also stated by the second respondent that the
petitioner in the present Civil Revision Petition , inspite of having
knowledge of the filing of Civil Revision Petition.No.2250 of 2005, has not
disclosed the same before this court, while filing the present Civil Revision
Petition.
In para 13 of the Counter affidavit, the second respondent has stated
as follows:-.
“13. I submit that the Hon’ble Supreme Court in 2003 (8) SCC 289, was
pleased to hold as follows:-
‘The Courts of law should be careful enough to check the diabolical plans of
the Judgment debtor and should not encourage the frivolous and cantankerous
litigations causing delay and bringing bad name to the judicial system.’
The second respondent also states that as per Section.65 Code of Civil
Procedure, “where immovable property is sold in an execution of a decree and
such sale has become absolute, the property shall be deemed to have vested in
the purchaser from the time when it is sold and not from the time when the
sale becomes absolute.”
17. Further, it is the case of the second respondent that there
were no objections raised for the proclamation of sale and its publication
under Rule 66 of Order 21 Code of Civil Procedure. He also states that no
application either in the form of Order 21 Rule 90 or under section 47 Code of
Civil Procedure could be entertained at this stage, especially when the
petitioner / Judgment debtor had failed to avail the same at the earliest
point of time and that the offer made by the petitioner to pay the decree
amount or the sale price cannot be entertained at this point of time, since he
had failed to avail the same by filing an application under Order 21 Rule 83
and 89 Code of Civil Procedure. Further, it is his case that an execution of
sale cannot be set aside merely on the ground that the price fixed for sale is
low and that it will fetch a higher price on resale and that there is a
presumption in law that the price fetched at a Court sale is adequate.
Further, inadequacy of price proprio vigore would not result in avoiding the
sale and that the petitioner is estopped from raising such contentions at this
belated stage.
18. In support of the contentions the second respondent has relied on
the following decisions :-
1) In the case reported in AIR 1967 Supreme Court 608 ( Janak Raj Vs.
Gurdial Singh and another) , the Supreme Court held as follows :-
“4. Before referring to the various decisions cited at the Bar and noted
in Judgment appealed from, it may be useful to take into consideration the
relevant provisions of the Code of Civil Procedure. So far as sales of
immovable property are concerned, there are some special provisions in O.XXI
beginning with R.82 and ending with R.103. If a sale had been validly held,
an application for setting the same aside can only be made under the
provisions of Rr.89 to 91 of O.XXI. As is well known, R.89 gives a
Judgment-debtor the right to have the sale set aside on his depositing in
Court a sum equal to five percent of the purchase money fetched at the sale
besides the amount specified in the proclamation of sale as that for the
recovery of which the sale was ordered, less any amount which may, since the
date of sale, have been received by the decree-holder. Under sub-r (2) of
R.92 the Court is obliged to make an order setting aside the sale if a proper
application under R.89 is made accompanied by a deposit within 30 days from
the date of sale. Apart from the provision of R.89, the Judgment-debtor has
the right to apply to the Court to set aside the sale on the ground of a
material irregularity or fraud in publishing or conducting it provided he can
satisfy the Court that he has sustained substantial injury by reason of such
irregularity or fraud. Under R.91 it is open to the purchaser to apply to the
Court to set aside the sale on the ground that the Judgment-debtor had no
saleable interest in the property sold. Rule 92 provides that where no
application is made under any of the rules just now mentioned or where such
application is made and disallowed the Court shall make an order confirming
the sale and thereupon the sale shall become absolute. Rule 94 provides that
where the sale of immovable property has become absolute, the Court must grant
a certificate specifying the property sold and the name of the person who at
the time of sale was declared to be the purchaser. Such certificate is to
bear date the day on which the sale becomes absolute. Section 65 of the Code
of Civil procedure lays down that where immovable property is sold in
execution of a decree and such sale has become absolute, the property shall be
deemed to have vested in the purchaser from the time when it is sold and not
from the time when the sale becomes absolute. The result is that the
purchaser’s title relates back to the date of sale and not the confirmation of
sale. There is no provision in the Code of Civil Procedure of 1908 either
under O.XXI or elsewhere which provides that the sale is not to be confirmed
if it be found that the decree under which the sale was ordered has been
reversed before the confirmation of sale. It does not seem ever to have been
doubted that once the sale is confirmed the judgment-debtor is not entitled to
get back the property even if he succeeds thereafter in having the decree
against him reversed. The question is, whether the same result ought to
follow when the reversal of the decree takes place before the confirmation of
sale.
5. …………………. The Code of Civil Procedure of 1908
contains elaborate provisions which have to be followed in cases of sales of
property in execution of a decree. It also lays down how and in what manner
such sales may be set aside. Ordinarily, if no application for setting aside
a sale is made under any of the provisions of Rr.8 9 to 91 of O.XXI, or when
any application under any of these rules is made and disallowed, the Court has
no choice in the matter of confirming the sale and the sale must be made
absolute. If it was the intention of the Legislature that the sale was not to
be made absolute because the decree had ceased to exist, we should have
expected a provision to that effect either in O.XXI or in Part II of the Code
of Civil Procedure of 1908 which contains Ss.36 to 74 (inclusive).
6)………………… Leaving aside cases like these, a sale can
only be set aside when an application under R.89 or R.90 or R.91 of O.XXI has
been successfully made.
8) ……………. Under the present Code of Civil procedure, the Court is
bound to confirm the sale and direct the grant of a certificate vesting the
title in the purchaser as from the date of sale when no application as is
referred to in R.92 is made or when such application is made and disallowed.
24) ……………. it must be held that the appellant-auction purchaser was
entitled to a confirmation of the sale notwithstanding the fact that after the
holding of the sale the decree had been set aside. The policy of the
Legislature seems to be that unless a stranger auction purchaser is protected
against the vicissitudes of the fortunes of the suit, sales in execution would
not attract customers and it would be to the detriment of the interest of the
borrower and the creditor alike if sales were allowed to be impugned merely
because the decree was ultimately set aside or modified. The code of Civil
Procedure of 1908 makes ample provision for the protection of the interest of
the Judgment-debtor who feels that the decree ought not to have been passed
against him. On the facts of this case, it is difficult to see why the
Judgment -debtor did not take resort to the provisions of O.XXI.R.89. The
decree was for a small amount and he could have easily deposited the decretal
amount besides 5 percent of the purchase money and thus have the sale set
aside. For reasons which are not known to us he did not do so.
25) It was contended that the amendment of S.47 of the Code of Civil Procedure
altered the whole situation in as much as by the Amending Act of 1956 auction
purchasers are to be treated as parties to the suit.
2) In the case reported in (2001) 6 Supreme Court Cases 213 ( Rajender
Singh Vs. Ramdhar Singh and others), the Supreme Court has held as follows :-
“17. The other ground for setting aside the same is the inadequacy of
the price. The respondents have not alleged any fraud or material
irregularity in the conduct of the court’s auction-sale, whereby they suffered
injustice. Mere inadequacy of the price is not a ground for setting aside the
court sale. That finding of the learned Judge also is not sustainable in law.
”
3) In the case reported in (2003) 8 Supreme Court Cases 289 (Ravinder
Kaur Vs. Ashok Kumar and another) , the Supreme Court held as follows :-
” 22. ……. a dispute in regard to the boundary of the suit schedule
property is only a bogey to delay the eviction by the abuse of the process of
court. Courts of law should be careful enough to see through such diabolical
plans of the judgment-debtors to deny the decree-holders the fruits of the
decree obtained by them. These type of errors on the part of the judicial
forums only encourage frivolous and cantankerous litigations causing law’s
delay and bringing bad name to the judicial system.”
4) In the case reported in 1966 (1) MLJ 324 (M.Shanmugham Chettiar Vs.
Manilal J.Sheth and others), wherein it has been held as follows :-
‘ The fact that the sale was not confirmed before the attachment was
effected cannot make any difference. For one thing, unlike the Madras Revenue
Recovery Act (II of 1864) or the Code of Civil Procedure, the Madras City Land
Revenue (Amendment) Act does not contemplate either the setting aside of the
sale by an application or confirmation of the sale. It cannot therefore be
stated that the sale has to be confirmed before it becomes absolute. But even
assuming that the sale could become absolute only after the confirmation of
the sale, it is not the confirmation of sale that vests rights in the property
to the purchaser. The moment the sale is held the Judgment-debtor of the
erstwhile owner loses all his title and interest therein and it is the
purchaser that becomes the owner thereof from the date of the sale.
…………………………. As soon as the title to the property vested
in the purchaser, the Judgment-debtor the erstwhile owner of the property,
cannot be deemed to have a saleable interest in or disposing power over this
property. His interest ceased in the house when the auction purchaser
obtained title to the property. The auction-purchaser could from that moment
effectively dispose of that property even in the absence of a sale
certificate. …………….. Assuming that the sale could become absolute
only after the confirmation of the sale, that does not vitally affect the
position in this case as it is not the confirmation of sale that vests rights
in the property to the purchaser. The moment the sale is held, the
Judgment-debtor or the erstwhile owner losses all his right, title and
interest therein and it is the purchaser that becomes the owner thereof from
the date of the sale. ……………… Further Section 65 of the Code of
Civil Procedure of great assistance in this controversy. That section
recites:
“Where immovable property is sold in execution of a decree and such
sale has become absolute, the property shall be deemed to have vested in the
purchaser from the time when the property is sold and not from the time when
the sale becomes absolute.”
5) In the case reported in 1969 (2) MLJ 274 (T.P.Ramaswami Naidu Vs.
Margabandu Mandri), it has been held as follows :-
‘Where a Court auction purchaser of the property in execution of the mortgage
decree applies for delivery of possession of the property, he cannot be
resisted by the purchaser from the mortgagor as an independent claimant merely
because he has been exonerated in the suit. On the issue of a sale
certificate to the purchaser in Court auction under Order 21, rule 94, Civil
Procedure Code, his title becomes perfected and complete and his right to
possession unimpeachable against the parties to the suit as well as those
claiming under them………………………………..
“On the issue of a sale certificate to the purchaser under Order 21 ,
rule 94 the latter’s title becomes perfected and complete and his right to
possession unimpeachable as against the parties to the suit as well as those
claiming under them”
6) In the case reported in AIR 1975 Madras 197 (K.Krishnaswami Gounder, Vs.
Palani Gounder) , it has been held as follows:-
3) The next objection of the judgment-debtor is that the sale
proclamation has failed to comply with the requirement of Order 21, Rule 66 ,
C.P.C in two respects. In the first place, it is said that there is no
compliance with the requirement of Order 21, Rule 66, subclause (2) (b) which
requires the proclamation to specify the revenue assessed upon the estate or
part of the estate, where the property to be sold is an interest in an estate
or part of an estate paying revenue to the Government. It is said that the
failure to state the revenue payable by the land that was brought to sale is a
material irregularity. I am unable to agree that sub-clause (b) has any
reference to land held in ryotwari tenure. Learned counsel for the appellant
would cite Naganna Vs. Venkatarayalu, AIR 1945 PC 178, in support of the
proposition that non-mention of the revenue payable even by a land held under
ryotwari tenure could be a violation of Order 21, Rule 66 (2) (b). A
reference to the ruling shows that the property that was brought to sale in
that case was the North West Vallur estate consisting of about 34 villages in
Kistna and West Godavari districts paying an annual peshkush of Rs.42,000/-.
This shows that the requirement of clause (b) of Order 21, Rule 66 (2) was
regarded by the Privy Council as being applicable to an estate or part of an
estate paying revenue to the Government and not to a land which is held in
ryotwari tenure and in respect of which only kist is payable a nd not
peshkush.
4. ……………. It may be noted that in the present execution
petition notices were issued to appellant twice and evidently because he tried
to evade service, substituted service was ordered and service was held by the
court to be sufficient and the appellant was set exparte and the execution
proceedings proceeded with. The appellant did not file any counter to this
execution petition stating the valuation of the property that was being
brought to sale. ……………………. if the Judgment-debtor fails to
appear in an execution petition and fails to state in that execution
proceedings his estimate of the value of the property, it is no part of the
duty of the court to make a research into the prior proceedings or to rummage
the records relating to any other proceedings between the parties in order to
find out if the judgment debtor had stated the value of the property. To say
that if the court fails to perform this impossible duty of conducting a
research into the prior proceedings and finding out if the judgment-debtor has
stated his value in those proceedings, it should be held guilty of a material
irregularity is, in my view, to make a mockery of the technicalities of law
without any regard for the realities in which the executing courts are called
upon to function. I may also add that even if it is regarded as a material
irregularity , there is no proof that as a result thereof the appellant has
suffered any injury.
7) In the case reported in AIR 1981 Madras 151 ( A.U.Natarajan Vs. Indian
Bank, Madras), wherein it has held as follows:-
’14. Before we go into that question, we must point out the
difference between the value of a property and the upset price for a property
brought for sale in a court auction. The word ‘value’ means as follows “to
estimate or appraise as being worth a specified sum or amount; to estimate the
value of (goods, property etc);to appraise in respect of value; to estimate or
regard as having a certain value or worth”. (Vide Shorter Oxford Dictionary
Illustrated vol. 2). On the other hand, the term ‘upset’ in relation to
price, means as follows- ” stated as the lowest sum for which property exposed
to auction will be sold: named as the sum from which bidding may start”.
(Vide Shorter Oxford Dictionary: illustrated vol. 2) The same term means
according to the Concise Oxford Dictionary III Edn. ‘lowest selling prince’
of property in auction: reserve price’ and, according to the Chamber’s
Twentieth Century Dictionary, “the lowest that will be accepted, at which
bidding is started”. From the meanings given above, it may be seen that the
words ‘value’ and ‘upset price’ are not synonymous, but have entirely
different meanings. Unfortunately, this distinction has not been noticed and
in several cases, the word ‘value’ has been used with reference to upset
price. The misuse of the word has afforded scope for the decree-holders in
certain cases to contend that the court must exercise its power and give its
own value of the property; meaning thereby that the court must fix an upset
price for the property, and the judgment-debtors in certain cases, to contend
that the court had no power to fix the upset price meaning thereby that the
court had no authority to make its estimate of the value of the property and
include it in the sale proclamation.
20. What the proviso in question lays down is that in a
proclamation of sale the estimate of the value of the property as given by
either or both the parties, should necessarily find a place. But, no duty was
cast on the court to enter in the sale proclamation its own estimate of the
value of the property. The reason for the Legislature having worded the
proviso in the manner done is not far off to see. The court making an
estimate of the value of the property and entering it in the proclamation of
sale would become necessary only when an upset price has to be fixed for the
property. Since the Legislature has now made it obligatory that the estimate
of the value of the property as given by either or both the parties, should
necessarily find a place in the proclamation of sale, the need for the Court
to fix an upset price may not arise in all cases. The procedure indicated by
P. N.Ramaswami.J. in Yellappa Naidu vs. Venugopal Naidu (1957) 70 Mad LW
815 : (AIR 1958 Mad 423) can be resorted to i.e., the sale will have to
commence at the higher price given by the Judgment-debtor and, in the absence
of bidders, the price will have to be progressively brought down till it
reaches the figure given by the decree-holder and again raised up, depending
upon the availability of bidders. If, inspite of such a procedure, the sale
does not take place for want of bidders, then it is open to the court, on the
application of the decreeholder, to fix an upset price for the property at a
rate as near as the property would be worth in the estimation of the Court.
If, even then, the sale does not take place, the decree holder can move the
executing court to reduce the upset price. It will be open to the executing
court to reduce the upset price or not, depending upon the circumstances of
the case, and, if a reduction is to be made, to decide the extent to which the
upset price should be reduced. It is only for these reasons, the legislature
should have enacted the proviso in two parts, the first part relating to the
discretionary power of the court to give its own estimate of the value of the
property in the sale proclamation and the second part relating to the
obligation of the court to include in the sale proclamation the estimate, if
any, given by either of both the parties. The first part of the proviso is in
the negative and the second part, in the affirmative. The significance of the
manner of drafting cannot be missed. The affirmative is used to give a
mandate and the negative is used only to emphasise that the court is not under
a duty to enter its own estimate in the proclamation of sale. If it was the
intention of the legislature that the court should, in no circumstances, give
its own estimate of the value of the property, then the wording of the first
part of the proviso would have been entirely different. The legislature would
have clearly mentioned that the court was precluded from making its own
estimate of the value of the property and that the proclamation shall not
include the estimate, if any, made by the court.
21. In some cases, the court may feel called upon, in the
interests of Justice, to enter in the proclamation of sale its own estimate of
the value of the property. Take for example, a case where the
Judgment-debtor, for some reason has not given his value of the property and
only the decree-holder has given his value and that value is grossly low. The
proclamation of sale would then contain only the value as given by the
decree-holder, and if the property is brought for sale, the bidding at the
auction can start only at the rate given by the decree-holder and the property
may be knocked off at the value given by the decree-holder or for a slightly
higher amount. The result will be that the property may get sold for a very
low price and the Judgment-debtor would be the loser in the bargain. To avoid
such a situation, the court can certainly exercise its discretionary power
under the first limb of the proviso and give its own estimate of the value of
the property in the sale proclamation.’
8) In the case reported in AIR 1988 Madras 114 ( L.Balu Vs. Periasami and
others), it has been held as follows:-
‘7. O.43, R.1(j) makes appealable :
“an order under R.72 or R.92 of O.21 setting aside or refusing to set
aside a sale” A reading of the above sub-rule clearly indicates that an appeal
would lie only against two categories of orders, viz., one setting aside the
sale and the other refusing to set aside the sale. Either of the above two
contingencies would arise only if an application is made to set aside the sale
either under R.72 or under the rules covered by R.92 of O.21 viz., Rr.89, 90
and 91. Under O.21, R.72 C.P.C a sale could be set aside when the
decree-holder either bids for or purchases the property without the necessary
permission of the Court. ………………. When the sale is sought to be
confirmed on the ground that no application to set aside the sale has been
made, the question of the Court setting aside the sale or refusing to set
aside the sale does not arise. When an order of confirmation is made on the
ground that no application to set aside the sale has been made, it cannot be
stated that such an order would come within the purview of O.43 .R. 1(j) .
it is significant that the wording in O.43. R 1(j) is not general in nature
so as to include all kinds of orders passed under R.92. It is limited to
orders setting aside or refusing to set aside the sale. When therefore a sale
is confirmed without any such contingency having arisen, viz., when no
application for setting aside the sale has ever been made, it should be taken
that such an order of confirmation will not come under O.43.R.1 (j) and it is
not therefore an appealable order. The remedy open to the aggrieved party
would be by a revision invoking the inherent powers of this Court. In the
instance case, the order itself makes it clear that the sale was confirmed on
the ground that no application for setting aside the sale was made in respect
of items 2 and 3. The present revision, therefore, is maintainable.’
19. In the reply affidavit filed by the Civil Revision petitioner
he states that under Order 43 Rule 1 (j) of Code of Civil Procedure an appeal
lies against an order passed under Order 21 Rule 92 setting aside or refusing
to set aside a sale.
20. It is also the case of the petitioner that Rule 95 of Order 21
provides for an application by a decree holder or auction purchaser and that
only under Order 21 Rule 92 the Judgment debtor can move an application to set
aside the sale. The petitioner also states that he filed the application to
set aside the sale before delivery had been ordered in favour of the purchaser
and therefore, the remedy available is only under Order 21 rule 92, Code of
Civil Procedure.
21. On a perusal of the reasons stated in the affidavit and the
counter affidavit filed on behalf of the petitioner as well as the respondent,
respectively, and on hearing the arguments advanced by the learned counsel
representing the petitioner as well as the respondent and on analysing the
case laws cited before this court, it is found that the Civil Revision
Petition No. 2286 of 2005 filed against the order made in Civil Miscellaneous
Appeal.16 of 2005 by the Sub-ordinate Judge, Namakkal, stands to be dismissed
for the following reasons. :-
The petitioner suffered a decree in O.S.No.176 of 1983 on
18.04.19 84. and failed to pay the decree amount necessitating the first
respondent / decree holder to file a petition to execute the decree.
Accordingly, on 28.07.1995 the decree holder filed in R.E.P.No.243 of 1 995 to
attach and to bring the property of the Judgment debtor to court auction sale
to realise the decree amount. The petitioner even after receipt of notice,
had failed to file his counter statement in R.E.P.No.243 of 1995 and hence he
was set ex parte on 31.01.1996. Thereafter, the property had been attached on
06.03.1996 and the first respondent / decree holder had filed the sale papers.
Sale proclamation was made on 03.10.1996 and the same was refused by the
petitioner / Judgement debtor on 06.12.1996. Therefore, he was set ex parte
in the sale proceedings on 20.01.1997. In pursuance of the order, dated
17.10.2000, sale was held on 20.12.2000 wherein the second respondent had
participated and his bid amount had been accepted by the court and after sale,
on the same day, he had deposited 1/4th of the sale price of Rs.18,850/-.
Inspite of an opportunity being available under law in favour of the
petitioner, under Order 21 Rule 89 of Code of Civil Procedure to deposit the
entire sale amount, the petitioner / Judgment Debtor had failed to do so, even
when the matter was posted for confirmation of sale on 06.04.2001.
R.E.A.No.1324 of 2001 filed by the petitioner / Judgment Debtor to set aside
the sale was dismissed for default on 18.08.2003, and in view of the disposal
of the petition under Section 47 of Code of Civil Procedure , the Executing
Court had confirmed the sale on 18.08.2003. Thereafter, issue of sale
certificate, as provided for under Order 21 Rule 94 Code of Civil Procedure,
has also been made. In such circumstances, the learned Subordinate Judge,
Namkkal, by his Judgment and decree, dated 14.09.2005, in CMA No.16 of 2005,
had rightly dismissed the appeal holding that the Executing Court had rightly
dismissed the petitioner’s E.A after affording sufficient opportunity on
several occasions and the Judgement debtor, without availing those
opportunities, is now attempting only to prolong the proceedings as much as
possible.
In view of the above circumstances, this Court is of the view that
there is no illegality or irregularity in the Judgment and decree of the Court
below, dated 14.09.2005, in CMA.No.16 of 2005, warranting interference, while
exercising the jurisdiction under Section 115 of Code of Civil Procedure.
Therefore, the Civil Revision Petition is dismissed as devoid of merits. No
osts. Consequently, Civil Miscellaneous Petition 20592 of 2005 is also
dismissed.