IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5499 of 2010(O)
1. PRADEEPKUMAR, VAZHUVELIL VEEDU,
... Petitioner
Vs
1. SUSEELAN, ASANTAYYATH VEEDU,
... Respondent
For Petitioner :SRI.J.OM PRAKASH
For Respondent :SRI.K.P.SREEKUMAR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :22/09/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.5499 of 2010
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Dated this the 22nd day of September, 2010.
JUDGMENT
Judgment debtor in E.P.No.1 of 2004 in O.S.No.312 of 1999 of the court
of learned Munsiff, Karunagappally challenges Ext.P8, order dismissing
E.A.No.228 of 2008 filed under Section 47 of the Code of Civil Procedure (for
short, “the Code”) to set aside the court auction sale held on 31.01.2008 on the
ground of alleged non-compliance with Rule 64 of Order XXI of the Code.
Executing court has dismissed the application on two grounds: firstly, application
is filed beyond period prescribed under Article 127 of the Limitation Act (for
short, “the Act:) and, secondly; petitioner has not adduced evidence to show
value of the property as he claimed. It is contended by learned counsel for
petitioner/judgment debtor placing reliance on the decision of the Apex Court in
S.Mariyappa (Dead) by Lrs. & Others v. Siddappa and another
(2004 (3) CTC 671) that non-compliance of Rule 64 of Order XXI of the Code
affected jurisdiction of the executing court to conduct the sale, sale conducted
without such compliance is a nullity and could be set aside on an application
made under Section 47 of the Code the period of limitation of which is governed
by the residuary Article (Article 137) of the Act. It is contended that even after
petitioner preferred objection to the draft proclamation sale (DPS) executing
court has not applied its mind and did not direct respondent to file amended
proclamation of sale as revealed from the copy of B diary produced in the Writ
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Petition. It is therefore contended that dismissal of E.A.No.228 of 2008 is not
correct legally or factually. Learned counsel for respondent has contended that
the application is hopelessly barred by limitation since on the grounds pleaded,
the application though given a label of Section 47 of the Code is one falling
under Rule 90 of Order XXI of the Code. It is contended that no material was
produced to prove value of land as claimed by petitioner in his objection to the
DPS. Learned counsel has invited my attention to the relevant records to show
that petitioner could not have urged that valuation of property is not proper.
2. 15 cents belonging to the petitioner was brought up for sale by the
respondent suggesting its market value as Rs.30,000/-. Petitioner preferred
Ext.P3, objection stating that value of the property is around Rupees four lakhs.
Respondent produced Ext.R1(d), valuation certificate dated 03.01.2007 issued
by the Tahsildar stating value of the property as Rs.49,198/-. It is seen from
Ext.P5, copy of B diary that after adjournment of the execution petition for
several days for various reasons the matter came up for hearing on 01.12.2007
on which day respondent produced Ext.R1(d), valuation certificate and the
execution petition was then posted for hearing on 03.12.2007. That day the
upset price was fixed (Rupees one lakh only) and it was ordered that the
property shall be proclaimed and sold on 31.01.2008. On 31.01.2008 property
was sold for Rs.1,00,009/- and purchased by the respondent as permitted by the
executing court. Execution petition was posted on 03.03.2008 for confirmation of
sale. In the meantime respondent filed Ext.R1(f) claiming that even after
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appropriating the sum of Rs.1,00,009/- towards the amount due under the
decree a further sum of Rs.45,820/- is due from petitioner and the said amount
may be realised from petitioner and his other assets. That execution petition
was objected by petitioner vide Ext.R1(g) wherein he stated that after adjusting
sale consideration Rs.1,00,009/- towards balance amount due to respondent he
has paid Rs.45,820/- and hence the claim made in Ext.R1(f) is not correct. It is
while so, that 265 days after the sale on 31.01.2008 petitioner filed E.A.
No.228 of 2008 to set aside the sale alleging that there was no proper
application of mind and non-compliance of Rule 64 of Order XXI of the Code.
3. Rule 90 of Order XXI of the Code enables judgment debtor to
apply to set aside the sale on material irregularity or fraud in publishing and
conducting the sale. There is no allegation of fraud so far as the present case is
concerned. There is also no allegation touching any irregularity in conducting
the sale. What remained is whether there is any material irregularity in
publishing the sale and whether on the grounds pleaded by petitioner the
application came under Section 47 of the Code so that it is governed by Article
137 of the Act or, it came under Rule 90 of Order XXI of the Code and is
governed by Article 127 of the Act. In the decision referred to above, reliance is
placed on the decision in Desh Bandhu Gupta v. N.L.Anand &
Rajinder Singh [(1994) 1 SCC 131]. It was held that a total absence of
drawing up of proclamation of sale and settlement of its term by judicial
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application of mind rendered the sale a nullity which is covered by Section 47 of
the Code. But non-application of mind to the question whether sale of a part of
the property would satisfy the decree debt is a material irregularity doing
substantial injury to the judgment debtor attracting Rule 90 of Order XXI of the
Code. That decision and the decision relied on by learned counsel would show
that Section 47 of the Code applied to a case of total absence of drawing up of
proclamation of sale and settlement of its terms by judicial application of mind
which rendered the sale a nullity. On the other hand if it is a case of a
proclamation of sale being drawn up without application of mind as to whether
sale of a portion of the property is sufficient to discharge the decree debt it is not
a case of total absence of drawing up of a proclamation of sale but only non-
application of mind under Rule 64 of Order XXI of the Code in which case even
as per the decision relied on by learned counsel and the decision in Desh
Bandhu Gupta’s case (supra) it could only come under Rule 90 of Order XXI of
the Code. Referring to the decision in Desh Bandhu Gupta’s case (supra) and
other decisions on the point, I had occasion to consider this aspect in
C.R.P.No.60 of 2010 and vide order dated 30.07.2010 it was held that where
the allegation was only that proclamation of sale was drawn up without
application of mind whether sale of a portion of the property is sufficient to
discharge the decree debt, the case came under Rule 90 of Order XXI of the
Code. In the present case there is a proclamation of sale drawn up by the
executing court. No doubt, according to the petitioner it was without application
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of mind as required under Rule 64 of Order XXI of the Code. The application,
notwithstanding the label given to it (Section 47) came under Rule 90 of Order
XXI of the Code governed by Article 127 of the Act. Admittedly the application is
made beyond 60 days from the date of sale. Hence it is barred by limitation. I
find no reason to interfere with the finding of executing court in that regard.
4. Next question is whether executing court had applied its mind to
the matter while fixing upset price. Even before upset price was fixed (as
Rupees one lakh only) on 03.12.2007 respondent produced Ext.R1(d),
valuation certificate where value of the property was assessed by the Tahsildar
as Rs.49,198/-. On the side of petitioner, he had not produced any document.
He did not take out a commission to conduct a local investigation as to value of
the property. What was available was only the bald statement in his objection to
the draft proclamation of sale that property is valued at Rupees four lakhs. It is
taking into account valuation given by the Tahsildar in Ext.R1(d) that executing
court fixed the upset price at Rupees one lakh.
5. Reliance is placed by learned counsel for petitioner on Ext.P4,
objection preferred by the respondent on the trial side to an application to
substitute the property attached. It would appear that another item of property
was attached before judgment and petitioner wanted that property to be
substituted by the property which is sold in auction. In Ext.P4, objection,
respondent (according to the petitioner) has stated that value assessed by
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Tahsildar is Rs.2,50,000/-. Ext.P4 is explained by learned counsel for
respondent that it was concerning the property sought to be substituted and
certain other items. No attempt was made by petitioner to prove value of
property as claimed by him even in E.A.No.228 of 2008. In the circumstances
executing court found that there was nothing on record to show that property was
valued as claimed by petitioner. It is with Ext.R1(d), valuation certificate on
record that executing court, as against value of property suggested by
respondent has fixed the upset price a Rupees one lakh. It cannot be said that
there was no application of mind. I find little reason to interfere.
Writ Petition fails. It is dismissed.
THOMAS P.JOSEPH,
Judge.
cks