BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/10/2009 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CRP.No.2340 of 2008 MP.Nos.1/2009 and 2/2008 Saminathan Petitioner/Respondent/Defendant Vs 1.The Manager, State Bank of India Chinnadharapuram, Aravakuruchi Taluk Karur District 1st respondent/petitioner/plaintiff 2.Gopalakrishnan 2nd Respondent/3rd party Prayer This Civil Revision Petition is filed against the decree and order dated 29.10.2008 in EP.No.6/2006 in OS.No.677/1998 passed by the learned District Munsif, Karur. !For Petitioner ... Mr.Balaji Srinivasan ^For Respondent ... Mr.Sethuraman - R1 Mr.M.Vallinayagam - R2 :ORDER
This Civil Revision Petition is filed by the Defendant to set aside
the order dated 29.10.2008 in EP.No.6/2006 in OS.No.677/1998 passed by the
learned District Munsif, Karur, confirming the sale and issuance of sale
certificate.
2. The back ground facts need to be noted in brief are as follows:-
The above said suit was filed by the 1st Respondent Bank/ Plaintiff
for recovery of money and the suit was decreed exparte. In the proceedings for
execution of the decree in EP.No.6/2006, the 2nd Respondent purchased the
Petitioner/judgement debtor’s property for a sum of Rs.45700/- and the sale was
confirmed on 29.10.2008. As against the confirmation of sale, the
Petitioner/Judgement debtor has filed this Civil Revision Petition contending
that the executing court ought not to have proceeded with the sale of entire six
items of the properties and it is obligatory on the part of the executing court
to bring only such portion as would satisfy the decree at the first instance.
3. The learned counsel for the Petitioner would contend that it is
the bounden duty of the court to first decide as to whether it is necessary to
bring the entire properties to sale or such portion thereof as may deem
necessary to satisfy the decree and would vehemently contend that the sale of
the property of the Petitioner conducted by the executing court is clearly
illegal and placed reliance on the decisions of the Honourable Supreme Court
rendered in the cases of Lal Chand Vs. VIII Additional District Judge and others
[1997-4-SCC-356], Takkaseela Pedda Subba Reddi Vs. Pujari Padmavathamma [1977-3-
SCC-337] and L.Balu Vs. Periasami and others [AIR-1988-Madras-114].
4. Per contra, the learned counsel for the 1st Respondent would
submit that when there is no collusion between the parties or suppression of
facts and the judgement debtor has also not raised any objection regarding the
upset price fixed by the court, the court auction sale cannot be set aside on
the ground of any irregularity in conducting the sale. In support of the said
contention, the decision of this court rendered in the case of Marimuthammal
and others Vs. Vaithi and others [2007-4-MLJ-796] was relied on by the learned
counsel for the 1st Respondent.
5. The learned counsel for the Petitioner drew the attention of
this court to the deposit of the decree amount made by him pursuant to the order
of this court granting interim stay in this Civil Revision Petition in
MP.NO.2/2008 and pleaded that notwithstanding confirmation of sale, due to
pendency of this Civil Revision Petition and stay granted, the sale in favour of
the auction purchaser has not become absolute and hence appropriate relief could
be granted to the Petitioner/judgement debtor.
6. It is one of the contentions of the learned counsel for the
Petitioner that there was no notice of sale to the judgement debtor and behind
his back the sale was conducted at throw away price and therefore, the sale is
not valid.
7. It is pertinent to refer to certain facts for better
appreciation. The decree dated 2.11.1998 had become final as no appeal was filed
by the judgement debtor. On 25.1.2000, EP.NO.73/1999 for arrest had been filed,
but the same was dismissed since the judgement debtor was not found for arrest.
Another EP in EP.No.137/2001 for arrest of the judgement debtor was also
dismissed for the same reason. Thereafter, EP.NO.166/2003 had been filed for
attachment and sale and the properties had been attached on 23.12.2003. On
20.4.2004, EP.NO.166/2003 had been closed with a direction to continue the
attachment for two months. Thereafter, EP.NO.6/2006 had been filed within two
months from the closure of previous EP and sale notice has been ordered to the
judgement order by 10.2.2006 and notice has been served on the judgement debtor
on 21.2.2006 through court and post. He had been set exparte on 21.2.2006 and
upset price has been fixed on 22.9.2006. As there was no bidder and the upset
price was also very high, at the instance of the decree holder in EA.NO.18/2007
upset price had been reduced.
8. As there was no bidder in the auction held on 16.6.2007, again
on the application filed by the decree holder in EA.NO.172/2007, upset price has
been further reduced. ON the above two occasions, notice has been served on the
judgement debtor before allowing those applications. Again the property has
been brought to sale on 31.10.2007 which necessitated for further reduction of
upset price at the instance of the decree holder in EP.No.81/2008. Even then the
judgement debtor failed to appear in spite of notice. The properties were
brought to sale on 18.6.2008. As no one came forward to bid in the court auction
on the memo filed by the decree holder the property was brought to sale on
27.8.2008 on the same upset price on 27.8.2008 in which one Gopalakrishnan, the
2nd Respondent had purchased the property for Rs.45700/- and the sale has been
confirmed since no petition either under Order 21 Rule 89 or 90 was filed and
the entire sale amount was deposited in time.
9. It may be mentioned here that notice has been served on the
judgement debtor on every occasion and in spite of it, he has not availed the
relevant provisions for seeking to set aside the sale either under Rule 89 or 90
of Order 21 of CPC. At this juncture, it is relevant to point out to the
observations made by the High Court of Andhra Pradesh in the case of Vummethala
Somamma Vs. Thameeru Balanagamma [AIR-2003-AP-45] in similar set of facts and
circumstances in paragraphs 5, 6 and 7, which read thus:-
“5. It is obvious that, if this revision petition is entertained for any reason
and the impugned docket order is set aside, it would tantamount to setting aside
the sale itself. That apart, it is now represented that the sale has been
subsequently confirmed by the executing court. A fortiori when the sale has
been confirmed, it cannot be sought to be set aside by filing a revision as
against the impugned order, where under the sale has been knocked down in favour
of the decree holder, he being the highest bidder. It is always open to the
judgement debtor or the third party auction purchaser to seek to set aside the
sale under the relevant provisions as discussed herein above of the Civil
Procedure Code. When the Petitioner failed to avail such remedies available
either under Rule 89 or Rule 90 of Order 21 of CPC the Petitioner cannot be
permitted to circumvent the said provisions by filing this revision to
indirectly achieve the object.
6. Yet another aspect to be considered in this regard is the point of
limitation. Under Article 127 of the Limitation Act, time is prescribed for
filing the application seeking to set aside the sale. Obviously that time has
been elapsed by now. What is not available having been barred by limitation,
cannot be permitted to be achieved indirectly, as it would tantamount to
circumventing the specific provisions incorporated in the statute in regard
thereto. Therefore, it is a clear case where the judgement debtor having not
availed the remedies available either under Rule 89 or 90 of Order 21 of CPC
cannot now be permitted to achieve the same by maintaining this revision
petition indirectly to set aside the sale. In my considered view, therefore, the
present revision petition is misconceived and is not maintainable.
7. Another aspect to be considered is the absolute prohibition incorporated in
sub rule (3) of Rule 92 of Order 21 of the Civil Procedure Code. This prohibits
any other remedy when once the sale is confirmed. In any view of the matter,
the present revision petition cannot be maintained.”
10. From the above said decision, it is clear that when the
executing court was not asked to act under Order 21 Rule 64 of CPC by exercising
its discretion to sell only part of the property attached, it is not open to the
Petitioner/judgement debtor to raise that point in this Civil Revision Petition.
11. In a recent decision of the Honourable Supreme Court rendered in
the case of Balakrishnan Vs. Malayandi Konar [2006-3-SCC-49] the Honourable
Supreme Court referring to Order 21 Rule 64 of CPC has held that the expression
in Order 21 Rule 64 that “such portion thereof as may deem necessary to satisfy
the decree” indicates the legislative intent that no sale can be allowed beyond
the decretal amount mentioned in the sale proclamation. The sale without
examining the said aspect and not in conformity with this mandatory requirement
would be illegal and without jurisdiction. But however it was observed that
when the question regarding the legality of the sale had attained finality
because of the confirmation of sale, no interference could be called for. The
relevant observation is extracted below:-
“Therefore, on the back ground facts noted by the High Court, the auction sale
did not meet the requirements of law. But, at the same time it appears that the
question regarding the legality of the sale had attained finality because of the
confirmation of sale on 22.8.1983. Though it is contended by the learned
counsel for the Respondent that the order dated 10.9.1987 passed by the High
Court rejecting CRP.No.3963/1983 filed by the judgement debtor seeking relief
was relatable to the Debt Relief Act, that did not have the effect of reviving
the question relating to violation of Order 21 Rule 64 of the Code.”
12. In the instant case, the judgement debtor having kept quiet
without availing any of the provisions in spite of the notice served on him and
allowing the sale to be confirmed, it cannot be set aside contending that Order
21 Rule 64 of CPC is violated. When the Petitioner has failed to avail such
remedies available either under Rule 89 or 90 of Order 21 of CPC, the Petitioner
cannot be permitted to circumvent the said provisions by filing this revision
to indirectly achieve the object.
13. For the reasons aforesaid, this Civil Revision Petition is
dismissed. No costs. Consequently, the connected MPs are closed.
Srcm
To:
The District Munsif, Karur.