{"id":56941,"date":"2006-03-09T00:00:00","date_gmt":"2006-03-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-rangasamy-vs-r-c-ramasamy-on-9-march-2006"},"modified":"2018-05-02T04:06:06","modified_gmt":"2018-05-01T22:36:06","slug":"m-rangasamy-vs-r-c-ramasamy-on-9-march-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-rangasamy-vs-r-c-ramasamy-on-9-march-2006","title":{"rendered":"M.Rangasamy vs R.C.Ramasamy on 9 March, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
M.Rangasamy vs R.C.Ramasamy on 9 March, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDATED: 09\/03\/2006  \n\nCORAM   \n\nTHE HON'BLE MR.JUSTICE M.JAICHANDREN          \n\nCRP. (NPD) No.2286 of 2005  \nand \nC.M.P.No.20592 of 2005  \n\n\nM.Rangasamy                    ....     Petitioner\n\n-Vs-\n\n1.  R.C.Ramasamy   \n2.  S.A.Jaganathan              ...   Respondents\n\n        PRAYER:  Civil Revision Petition is filed under Section 115  of  Civil\nProcedure   Code   against  the  Order  and  decretal  order  of  the  learned\nSubordinate Judge, Namakkal,  in  C.M.A.No.16  of  2005,  dated  14.09.2005  ,\nconfirming  the  Order  and  Decretal  Order  of  the learned District Munsif,\nRasipuram, in R.E.A.No.178 of 2004 in R.E.P.No.243 of 1995  in  O.S.No.176  of\n1983, dated 23.06.2005.\n\n!For petitioner :  M\/s.  Dr.R.Gopinath,\n                        S.V.Karthikeyan & G.Chandrasekar\n\n^For respondents:  Mr.N.Manokaran  \n\n:O R D E R \n<\/pre>\n
                This  Civil  Revision  Petition  is filed under Section 115 of
\nCivil Procedure Code  against the Order and  decretal  order  of  the  learned
\nSubordinate   Judge,  Namakkal,  in  C.M.A.No.16  of  2005  dated  14.09.2005,
\nconfirming the Order and  Decretal  Order  of  the  learned  District  Munsif,
\nRasipuram, in  R.E.A.No.178 of 2004 in R.E.P.No.243 of 1995 in O.S.  No.176 of
\n1983 dated 23.06.2005.\n<\/p>\n
        2.      Heard  the  learned  counsel for the petitioner as well as the
\nrespondents.\n<\/p>\n
        3.      The case of the petitioner is that the first respondent herein
\nfiled O.S.No.176 of 1983 on the file of District Munsif, Rasipuram, to recover
\nRs.27,180\/-.  The suit was decreed and  the  first  respondent  had  filed  an
\nexecution  petition  in R.E.P.No.243 of 1995 and brought the properties of the
\npetitioner, namely, the mill and the house, to court auction.  The  properties
\nwere  taken  in  auction by the second respondent for a sum of Rs.75,400\/- and
\nthe sale was also confirmed.   The  Auction  purchaser  filed  an  application
\nR.E.A.No.178 of 2004 in R.E.P.No.243 of 1995 for delivery of possession.\n<\/p>\n
        4.      The petitioner further states that even before the delivery of
\npossession was effected, he filed R.E.A.No.1324 of  2001  in  R.E.P.No.243  of
\n1995 under Section 47 of the Civil Procedure Code to set aside the sale.  When
\nthe  application  was  posted for hearing on 18.08.2003, his counsel could not
\nattend the hearing and therefore, the petition  was  dismissed.    He  further
\nstates that he had filed an application to restore the application E.A.No.1324
\nof 2001  which  was  dismissed  for  default.   While the said application was
\npending, the Executing Court directed the delivery of property to  the  second
\nrespondent herein.   The petitioner has also filed Civil Miscellaneous Appeal.
\nNo.16 of 200 5, against the order made in R.E.A.No.178 of 2004 in R.E.P.No.243
\nof 1995.\n<\/p>\n
        5.      In  his   affidavit   filed   in   the   Civil   Miscellaneous
\nPetition.No.20  592  of  2005,  he  has stated that the property is worth over
\nRs.10,00,0 00\/- and the auction was taken for a meagre amount  of  Rs.75,400\/-
\nand  that  the  appellate Court has jurisdiction to set aside the order of the
\nDistrict Munsif and that there is no time limit for moving an application.  He
\nhas further averred that without disposing of his application for restoration,
\nthe order for delivery of possession ought not to have been passed.\n<\/p>\n
        6.      The petitioner has further stated in his  affidavit  that  the
\nrespondents  had  contended that an appeal is not maintainable and that only a
\nrevision had to be filed.  Further, the learned Sub-ordinate Judge,  Namakkal,
\nhad  dismissed  the  appeal  holding  that  the  appeal  was not maintainable.
\nTherefore, the petitioner was constrained to file the present  Civil  Revision
\nPetition.\n<\/p>\n
        7.      On the contrary, the case of the respondents is that the first
\nrespondent  herein  had  filed  the suit in O.S.No.176 of 1983 for recovery of
\nmoney as against the petitioner and that the suit  was  decreed  as  early  as
\n18.04.1984.   He  further  states that the petitioner herein having suffered a
\ndecree, had failed to pay the decree  amount,  which  necessitated  the  first
\nrespondent  \/  decree  holder to file the petition to execute the said decree.
\nAccordingly, on 28.07.1995, he had filed R.E.P.No.243 of 1995 to attach and to
\nbring the property of the Judgment debtor for sale by court auction to realise
\nthe decree amount.  He further states that the petitioner having received  the
\nnotice,  had failed to file counter the statement in R.E.P .No.243 of 1995 and
\nhence, he was called absent and set exparte on 31.01.1996.    Thereafter,  the
\nproperties were attached on 06.03.1996.\n<\/p>\n
        8.      It  is further stated that the first respondent \/decree holder
\nhad filed the sale papers and the proclamation of sale notice  was  issued  on
\n03.10.1996  and  the  same  was  refused by the petitioner\/ Judgment debtor on
\n06.12.1996.  Hence, he was set  ex  parte  and  the  sale  proceeded  with  on
\n20.01.1997.\n<\/p>\n
        9.      It  is  further stated by the second respondent herein that on
\n20.0 2.1997, the Executing Court fixed the upset price  at  Rs.4,00,000\/-  and
\nordered for sale.  Since there were no bidders, during that auction, the upset
\nprice had been reduced on various occasions in the subsequent auctions and the
\ndetails are as follows:-\n<\/p>\n
        “09.11.1997 R.E.A.No.1363 of 1997 the amount
\n        has been reduced to Rs.3,00,000\/-
\n        27.03.1998 R.E.A.No.294 of 1998 the amount
\n        has been reduced to Rs.2,50,000\/-
\n        19.08.1998 R.E.A.No.1148 of 1998 the amount
\n        has been reduced to Rs.2,10,000\/-
\n        16.04.1999 R.E.A.No.2015 of 1998 the amount
\n        has been reduced to Rs.1,50,000\/-
\n        16.11.1999 R.E.A.No.1743 of 1999 the amount
\n        has been reduced to Rs.1,25,000\/-
\n        17.04.2000 R.E.A.No.356 of 2000 the amount
\n        has been reduced to Rs.1,00,000\/-
\n        17.10.2000 R.E.A.No.1629 of 2000 the amount
\n        has been reduced to Rs.75,000\/-“<\/p><\/blockquote>\n
        10.     The  second respondent further states that the upset price was
\nfinally reduced to Rs.75,000\/- in view of the fact  that  no  one  offered  to
\naccept  the  upset price fixed by the Court on the earlier dates fixed for the
\nsale.  He further states that the upset price had been reduced to  Rs.75,000\/-
\nonly  after  giving  notice to the petitioner \/ Judgment Debtor but he did not
\nattempt to question the same at any point of time and in the  manner  provided
\nby law.    He  further states in pursuance to the order, dated 17.10.2000, the
\nsale was held on 20.12.200 0 wherein he had participated and  the  amount  had
\nbeen  accepted  in  the court auction sale, and on his depositing the 1\/4th of
\nsale consideration of Rs.18,850\/- , the matter was posted for confirmation  of
\nsale  on  06.04.2001 and even after the sale, opportunity was available to the
\npetitioner under law in the form of Order 21, Rule 89, Code of Civil Procedure
\nto deposit the entire sale amount.  Instead,  the  petitioner  sought  to  set
\naside  the  order  in  R.E.A.No.1324  of  2001 with the mala fide intention of
\ndragging on the matter and had managed to drag on the matter  for  nearly  two
\nand half  years.    Thereafter, the said petition was dismissed for default on
\n18.08.2003.  In view of the said dismissal of the petition filed under Section<\/p>\n
47 of Code of Civil Procedure, the Executing Court was pleased to confirm  the
\nsale  on  18 .08.2003 and had also issued the sale certificate as provided for
\nunder Order 21 Rule 94 of Civil Procedure Code.\n<\/p>\n
        11.     He further states that the expression “an application is  made
\nand disallowed ” in Order 21 Rule 95 Code of Civil Procedure covers not only a
\ncase  where  the  application was disallowed on merits but also disallowed for
\nany other reason, such as for default.\n<\/p>\n
        12.     The second respondent further states that the right, title and
\ninterest of the revision petitioner\/Judgment Debtor passes on the  court  sale
\nand  he has ceased to be the owner of the property on the date of confirmation
\nof the sale by the court  and  that  alleged  irregularity,  if  any,  in  the
\nexecution proceedings,  are  cured  by  the sale certificate.  Accordingly, on
\nissuance of the  sale  certificate,  the  second  respondent’s  title  in  the
\nproperty  becomes  complete  and he is entitled to apply for possession of the
\nproperty purchased.  He  further  states  that,  on  21.10.2003,  he  filed  a
\npetition  for  possession  under  Order  21 Rule 95 Code of Civil Procedure in
\nR.E.A.No.178 of 2004.  The petitioner herein entered appearance and filed  his
\ncounter.  Finally the said petition was allowed as prayed for on 23.06.2005.\n<\/p>\n
        13.     It  is  also  the case of the second respondent that the order
\ngranting delivery in R.E.A.No.178 of  2004  is  consequential  in  nature  and
\ncannot be questioned before any forum, especially, when the orders made in the
\nearlier  proceedings  have  not  been  challenged by the petitioner \/ Judgment
\nDebtor.  He further states that except the orders made in the  petition  filed
\nunder  Order  21  Rules 72 and 92, Code of Civil Procedure, no appeal could be
\nentertained either under Order 43 Rule 1 (j) or under Order 41 Rule 1 of  Code
\nof Civil Procedure.  He further states that the petitioner has filed an appeal
\nunder Order 41 Rule 1, Code of Civil Procedure before the Sub-court, Namakkal,
\nin CMA.No.16  of 2005.  It is his case that the order made under Order 21 Rule
\n95 Code of Civil Procedure is not appealable and it cannot  be  challenged  by
\nway of appeal and it cannot be challenged by way of an appeal.  Therefore, the
\nappeal   filed   by  the  petitioner  before  Sub-Court,  Namakkal,  in  Civil
\nMiscellaneous Appeal No.16 of 2005, dated 14.11.2005, is misconceived and  not
\nmaintainable under  law.    Therefore,  the  order  of  dismissal of the Civil
\nMiscellaneous Appeal by the learned Sub-Ordinate Judge, Namakkal, filed  under
\nOrder 41 Rule 1 holding that the appeal as not maintainable is correct in law.\n<\/p>\n
        14.     The  second  respondent  also  states that, it is pertinent to
\npoint out at this juncture that, at the instance of the petitioner herein, his
\nsons, namely, R.Selvaraju and R.  Arulkannan, had  filed  a  petition  to  set
\naside  the sale under Order 21, Rule 90,97,101 and Section 15 1, Code of Civil
\nProcedure and the same was rejected by  the  trial  Court  on  the  ground  of
\nmaintainability.\n<\/p>\n
        15.     Aggrieved  by  the  said  rejection  by  the  trial  Court  on
\n06.12.2005 , he filed a revision under Article  227  of  the  Constitution  of
\nIndia in  Civil  Revision  Petition.No.2250  of  2005.   It is the case of the
\nsecond respondent herein that the said revision is not maintainable in law  in
\nview  of  the  statutory  bar  under  Order  21  Rule  90 (3) of Code of Civil
\nProcedure.\n<\/p>\n
        16.     It  is  stated  by  him   that   the   said   Civil   Revision
\nPetition.No.225  0  of  2005 is also pending before this court, without having
\nbeen admitted, till date.  It is also stated by the second respondent that the
\npetitioner in  the  present  Civil  Revision  Petition  ,  inspite  of  having
\nknowledge  of  the  filing of Civil Revision Petition.No.2250 of 2005, has not
\ndisclosed the same before this court, while filing the present Civil  Revision
\nPetition.\n<\/p>\n
        In  para 13 of the Counter affidavit, the second respondent has stated
\nas follows:-.\n<\/p>\n
        “13.  I submit that the Hon’ble Supreme Court in 2003 (8) SCC 289, was
\npleased to hold as follows:-\n<\/p>\n
‘The Courts of law should be careful enough to check the diabolical  plans  of
\nthe  Judgment  debtor  and should not encourage the frivolous and cantankerous
\nlitigations causing delay and bringing bad name to the judicial system.’
\n        The second respondent also states that as per Section.65 Code of Civil
\nProcedure, “where immovable property is sold in an execution of a  decree  and
\nsuch  sale has become absolute, the property shall be deemed to have vested in
\nthe purchaser from the time when it is sold and not from  the  time  when  the
\nsale becomes absolute.”\n<\/p>\n
        17.     Further,  it  is  the case of the second respondent that there
\nwere no objections raised for the proclamation of  sale  and  its  publication
\nunder Rule  66  of  Order  21 Code of Civil Procedure.  He also states that no
\napplication either in the form of Order 21 Rule 90 or under section 47 Code of
\nCivil Procedure could be  entertained  at  this  stage,  especially  when  the
\npetitioner  \/  Judgment  debtor  had  failed to avail the same at the earliest
\npoint of time and that the offer made by the  petitioner  to  pay  the  decree
\namount or the sale price cannot be entertained at this point of time, since he
\nhad  failed  to avail the same by filing an application under Order 21 Rule 83
\nand 89 Code of Civil Procedure.  Further, it is his case that an execution  of
\nsale cannot be set aside merely on the ground that the price fixed for sale is
\nlow  and  that  it  will  fetch  a  higher price on resale and that there is a
\npresumption in law that the  price  fetched  at  a  Court  sale  is  adequate.
\nFurther,  inadequacy  of price proprio vigore would not result in avoiding the
\nsale and that the petitioner is estopped from raising such contentions at this
\nbelated stage.\n<\/p>\n
        18.  In support of the contentions the second respondent has relied on
\nthe following decisions :-\n<\/p>\n
        1)  In the case reported in AIR 1967 Supreme Court 608 ( Janak Raj Vs.
\nGurdial Singh and another) , the Supreme Court held as follows :-
\n“4.     Before referring to the various decisions cited at the Bar  and  noted
\nin  Judgment  appealed  from,  it may be useful to take into consideration the
\nrelevant provisions of the Code of Civil  Procedure.    So  far  as  sales  of
\nimmovable  property  are concerned, there are some special provisions in O.XXI
\nbeginning with R.82 and ending with R.103.  If a sale had been  validly  held,
\nan  application  for  setting  the  same  aside  can  only  be  made under the
\nprovisions of Rr.89 to  91  of  O.XXI.    As  is  well  known,  R.89  gives  a
\nJudgment-debtor  the  right  to  have  the sale set aside on his depositing in
\nCourt a sum equal to five percent of the purchase money fetched  at  the  sale
\nbesides  the  amount  specified  in  the  proclamation of sale as that for the
\nrecovery of which the sale was ordered, less any amount which may,  since  the
\ndate of  sale,  have  been  received by the decree-holder.  Under sub-r (2) of
\nR.92 the Court is obliged to make an order setting aside the sale if a  proper
\napplication  under  R.89  is made accompanied by a deposit within 30 days from
\nthe date of sale.  Apart from the provision of R.89, the  Judgment-debtor  has
\nthe  right  to  apply  to  the  Court to set aside the sale on the ground of a
\nmaterial irregularity or fraud in publishing or conducting it provided he  can
\nsatisfy  the  Court that he has sustained substantial injury by reason of such
\nirregularity or fraud.  Under R.91 it is open to the purchaser to apply to the
\nCourt to set aside the sale on the ground  that  the  Judgment-debtor  had  no
\nsaleable interest  in  the  property  sold.    Rule  92 provides that where no
\napplication is made under any of the rules just now mentioned  or  where  such
\napplication  is  made  and disallowed the Court shall make an order confirming
\nthe sale and thereupon the sale shall become absolute.  Rule 94 provides  that
\nwhere the sale of immovable property has become absolute, the Court must grant
\na  certificate  specifying the property sold and the name of the person who at
\nthe time of sale was declared to be the purchaser.   Such  certificate  is  to
\nbear date  the day on which the sale becomes absolute.  Section 65 of the Code
\nof Civil procedure  lays  down  that  where  immovable  property  is  sold  in
\nexecution of a decree and such sale has become absolute, the property shall be
\ndeemed  to  have vested in the purchaser from the time when it is sold and not
\nfrom the time when the  sale  becomes  absolute.    The  result  is  that  the
\npurchaser’s title relates back to the date of sale and not the confirmation of
\nsale.   There  is  no  provision in the Code of Civil Procedure of 1908 either
\nunder O.XXI or elsewhere which provides that the sale is not to  be  confirmed
\nif  it  be  found  that  the  decree under which the sale was ordered has been
\nreversed before the confirmation of sale.  It does not seem ever to have  been
\ndoubted that once the sale is confirmed the judgment-debtor is not entitled to
\nget  back  the  property  even  if he succeeds thereafter in having the decree
\nagainst him reversed.  The question is,  whether  the  same  result  ought  to
\nfollow  when the reversal of the decree takes place before the confirmation of
\nsale.\n<\/p>\n
        5.  ………………….   The  Code  of  Civil  Procedure  of  1908
\ncontains  elaborate  provisions which have to be followed in cases of sales of
\nproperty in execution of a decree.  It also lays down how and in  what  manner
\nsuch sales  may be set aside.  Ordinarily, if no application for setting aside
\na sale is made under any of the provisions of Rr.8 9 to 91 of O.XXI,  or  when
\nany application under any of these rules is made and disallowed, the Court has
\nno  choice  in  the  matter  of  confirming the sale and the sale must be made
\nabsolute.  If it was the intention of the Legislature that the sale was not to
\nbe made absolute because the decree  had  ceased  to  exist,  we  should  have
\nexpected  a provision to that effect either in O.XXI or in Part II of the Code
\nof Civil Procedure of 1908 which contains Ss.36 to 74 (inclusive).\n<\/p>\n
        6)…………………  Leaving aside cases like these,  a  sale  can
\nonly  be set aside when an application under R.89 or R.90 or R.91 of O.XXI has
\nbeen successfully made.\n<\/p>\n
8) …………….  Under the present Code of Civil procedure, the  Court  is
\nbound  to  confirm  the sale and direct the grant of a certificate vesting the
\ntitle in the purchaser as from the date of sale  when  no  application  as  is
\nreferred to in R.92 is made or when such application is made and disallowed.\n<\/p>\n
24) …………….  it must be held that the appellant-auction purchaser was
\nentitled to a confirmation of the sale notwithstanding the fact that after the
\nholding of  the  sale  the  decree  had  been  set  aside.   The policy of the
\nLegislature seems to be that unless a stranger auction purchaser is  protected
\nagainst the vicissitudes of the fortunes of the suit, sales in execution would
\nnot  attract customers and it would be to the detriment of the interest of the
\nborrower and the creditor alike if sales were allowed to  be  impugned  merely
\nbecause the  decree  was  ultimately set aside or modified.  The code of Civil
\nProcedure of 1908 makes ample provision for the protection of the interest  of
\nthe  Judgment-debtor  who  feels that the decree ought not to have been passed
\nagainst him.  On the facts of this case,  it  is  difficult  to  see  why  the
\nJudgment -debtor  did  not  take  resort to the provisions of O.XXI.R.89.  The
\ndecree was for a small amount and he could have easily deposited the  decretal
\namount  besides  5  percent  of  the purchase money and thus have the sale set
\naside.  For reasons which are not known to us he did not do so.\n<\/p>\n
25) It was contended that the amendment of S.47 of the Code of Civil Procedure
\naltered the whole situation in as much as by the Amending Act of 1956  auction
\npurchasers are to be treated as parties to the suit.\n<\/p>\n
        2) In the case reported in (2001) 6 Supreme Court Cases 213 ( Rajender
\nSingh Vs.  Ramdhar Singh and others), the Supreme Court has held as follows :-\n<\/p>\n
        “17.  The other ground for setting aside the same is the inadequacy of
\nthe price.      The  respondents  have  not  alleged  any  fraud  or  material
\nirregularity in the conduct of the court’s auction-sale, whereby they suffered
\ninjustice.  Mere inadequacy of the price is not a ground for setting aside the
\ncourt sale.  That finding of the learned Judge also is not sustainable in law.
\n”\n<\/p>\n
        3) In the case reported in (2003) 8 Supreme Court Cases 289  (Ravinder
\nKaur Vs.  Ashok Kumar and another) , the Supreme Court held as follows :-\n<\/p>\n
” 22.  …….  a  dispute  in  regard  to  the  boundary of the suit schedule
\nproperty is only a bogey to delay the eviction by the abuse of the process  of
\ncourt.   Courts of law should be careful enough to see through such diabolical
\nplans of the judgment-debtors to deny the decree-holders  the  fruits  of  the
\ndecree obtained  by  them.    These type of errors on the part of the judicial
\nforums only encourage frivolous and  cantankerous  litigations  causing  law’s
\ndelay and bringing bad name to the judicial system.”\n<\/p>\n
        4) In the case reported in 1966 (1) MLJ 324 (M.Shanmugham Chettiar Vs.
\nManilal J.Sheth and others), wherein it has been held as follows :-\n<\/p>\n
        ‘ The fact that the sale was not confirmed before the  attachment  was
\neffected cannot make any difference.  For one thing, unlike the Madras Revenue
\nRecovery Act (II of 1864) or the Code of Civil Procedure, the Madras City Land
\nRevenue  (Amendment)  Act does not contemplate either the setting aside of the
\nsale by an application or confirmation of the sale.  It  cannot  therefore  be
\nstated that the sale has to be confirmed before it becomes absolute.  But even
\nassuming  that  the  sale could become absolute only after the confirmation of
\nthe sale, it is not the confirmation of sale that vests rights in the property
\nto the purchaser.  The moment the sale is  held  the  Judgment-debtor  of  the
\nerstwhile  owner  loses  all  his  title  and  interest  therein and it is the
\npurchaser  that  becomes  the  owner  thereof  from  the  date  of  the  sale.
\n………………………….   As  soon as the title to the property vested
\nin the purchaser, the Judgment-debtor the erstwhile  owner  of  the  property,
\ncannot  be  deemed to have a saleable interest in or disposing power over this
\nproperty.  His interest  ceased  in  the  house  when  the  auction  purchaser
\nobtained title  to the property.  The auction-purchaser could from that moment
\neffectively  dispose  of  that  property  even  in  the  absence  of  a   sale
\ncertificate.  ……………..   Assuming that the sale could become absolute
\nonly after the confirmation of the sale, that  does  not  vitally  affect  the
\nposition  in this case as it is not the confirmation of sale that vests rights
\nin the property  to  the  purchaser.    The  moment  the  sale  is  held,  the
\nJudgment-debtor  or  the  erstwhile  owner  losses  all  his  right, title and
\ninterest therein and it is the purchaser that becomes the owner  thereof  from
\nthe date of  the  sale.  ………………  Further Section 65 of the Code of
\nCivil Procedure of  great  assistance  in  this  controversy.    That  section
\nrecites:\n<\/p>\n
        “Where  immovable  property  is sold in execution of a decree and such
\nsale has become absolute, the property shall be deemed to have vested  in  the
\npurchaser  from  the time when the property is sold and not from the time when
\nthe sale becomes absolute.”\n<\/p>\n
        5)  In  the case reported in 1969 (2) MLJ 274 (T.P.Ramaswami Naidu Vs.
\nMargabandu Mandri), it has been held as follows :-\n<\/p>\n
‘Where a Court auction purchaser of the property in execution of the  mortgage
\ndecree  applies  for  delivery  of  possession  of  the property, he cannot be
\nresisted by the purchaser from the mortgagor as an independent claimant merely
\nbecause he has been  exonerated  in  the  suit.    On  the  issue  of  a  sale
\ncertificate  to  the purchaser in Court auction under Order 21, rule 94, Civil
\nProcedure Code, his title becomes perfected and  complete  and  his  right  to
\npossession  unimpeachable  against  the  parties  to the suit as well as those
\nclaiming under them………………………………..\n<\/p>\n
        “On the issue of a sale certificate to the purchaser under Order 21  ,
\nrule  94  the  latter’s  title becomes perfected and complete and his right to
\npossession unimpeachable as against the parties to the suit as well  as  those
\nclaiming under them”\n<\/p>\n
6)  In  the  case reported in AIR 1975 Madras 197 (K.Krishnaswami Gounder, Vs.
\nPalani Gounder) , it has been held as follows:-\n<\/p>\n
        3)      The next objection of the judgment-debtor  is  that  the  sale
\nproclamation  has failed to comply with the requirement of Order 21, Rule 66 ,
\nC.P.C in two respects.  In the first place,  it  is  said  that  there  is  no
\ncompliance  with the requirement of Order 21, Rule 66, subclause (2) (b) which
\nrequires the proclamation to specify the revenue assessed upon the  estate  or
\npart  of the estate, where the property to be sold is an interest in an estate
\nor part of an estate paying revenue to the Government.  It is  said  that  the
\nfailure to state the revenue payable by the land that was brought to sale is a
\nmaterial irregularity.    I  am  unable  to  agree that sub-clause (b) has any
\nreference to land held in ryotwari tenure.  Learned counsel for the  appellant
\nwould cite  Naganna  Vs.    Venkatarayalu,  AIR 1945 PC 178, in support of the
\nproposition that non-mention of the revenue payable even by a land held  under
\nryotwari tenure  could  be  a  violation  of  Order  21,  Rule  66 (2) (b).  A
\nreference to the ruling shows that the property that was brought  to  sale  in
\nthat  case was the North West Vallur estate consisting of about 34 villages in
\nKistna and West Godavari districts paying an annual peshkush  of  Rs.42,000\/-.
\nThis  shows  that  the  requirement of clause (b) of Order 21, Rule 66 (2) was
\nregarded by the Privy Council as being applicable to an estate or part  of  an
\nestate  paying  revenue  to  the Government and not to a land which is held in
\nryotwari tenure and in respect  of  which  only  kist  is  payable  a  nd  not
\npeshkush.\n<\/p>\n
4.      …………….   It  may  be  noted  that  in  the present execution
\npetition notices were issued to appellant twice and evidently because he tried
\nto evade service, substituted service was ordered and service was held by  the
\ncourt  to  be  sufficient  and the appellant was set exparte and the execution
\nproceedings proceeded with.  The appellant did not file any  counter  to  this
\nexecution  petition  stating  the  valuation  of  the  property that was being
\nbrought to sale.  …………………….  if the Judgment-debtor  fails  to
\nappear  in  an  execution  petition  and  fails  to  state  in  that execution
\nproceedings his estimate of the value of the property, it is no  part  of  the
\nduty  of the court to make a research into the prior proceedings or to rummage
\nthe records relating to any other proceedings between the parties in order  to
\nfind out  if the judgment debtor had stated the value of the property.  To say
\nthat if the court fails to  perform  this  impossible  duty  of  conducting  a
\nresearch into the prior proceedings and finding out if the judgment-debtor has
\nstated  his value in those proceedings, it should be held guilty of a material
\nirregularity is, in my view, to make a mockery of the  technicalities  of  law
\nwithout  any regard for the realities in which the executing courts are called
\nupon to function.  I may also add that even if it is regarded  as  a  material
\nirregularity  ,  there  is no proof that as a result thereof the appellant has
\nsuffered any injury.\n<\/p>\n
7) In the case reported in AIR 1981 Madras 151 (  A.U.Natarajan  Vs.    Indian
\nBank, Madras), wherein it has held as follows:-\n<\/p>\n
        ’14.   Before  we  go  into  that  question,  we  must  point  out the
\ndifference between the value of a property and the upset price for a  property
\nbrought for  sale in a court auction.  The word ‘value’ means as follows  “to
\nestimate or appraise as being worth a specified sum or amount; to estimate the
\nvalue of (goods, property etc);to appraise in respect of value; to estimate or
\nregard as having a certain value or worth”.  (Vide Shorter  Oxford  Dictionary
\nIllustrated vol.   2).    On  the  other hand, the term ‘upset’ in relation to
\nprice, means as follows- ” stated as the lowest sum for which property exposed
\nto auction will be sold:  named as the sum  from  which  bidding  may  start”.
\n(Vide Shorter Oxford  Dictionary:    illustrated  vol.  2) The same term means
\naccording to the Concise Oxford Dictionary III Edn.  ‘lowest  selling  prince’
\nof property  in  auction:    reserve  price’  and,  according to the Chamber’s
\nTwentieth Century Dictionary, “the lowest that  will  be  accepted,  at  which
\nbidding is  started”.   From the meanings given above, it may be seen that the
\nwords ‘value’  and  ‘upset  price’  are  not  synonymous,  but  have  entirely
\ndifferent meanings.   Unfortunately, this distinction has not been noticed and
\nin several cases, the word ‘value’ has  been  used  with  reference  to  upset
\nprice.   The  misuse  of the word has afforded scope for the decree-holders in
\ncertain cases to contend that the court must exercise its power and  give  its
\nown  value  of  the property; meaning thereby that the court must fix an upset
\nprice for the property, and the judgment-debtors in certain cases, to  contend
\nthat  the  court  had no power to fix the upset price meaning thereby that the
\ncourt had no authority to make its estimate of the value of the  property  and
\ninclude it in the sale proclamation.\n<\/p>\n
        20.     What   the  proviso  in  question  lays  down  is  that  in  a
\nproclamation of sale the estimate of the value of the  property  as  given  by
\neither or both the parties, should necessarily find a place.  But, no duty was
\ncast  on  the  court to enter in the sale proclamation its own estimate of the
\nvalue of the property.  The reason  for  the  Legislature  having  worded  the
\nproviso in  the  manner  done  is  not  far  off  to see.  The court making an
\nestimate of the value of the property and entering it in the  proclamation  of
\nsale  would  become necessary only when an upset price has to be fixed for the
\nproperty.  Since the Legislature has now made it obligatory that the  estimate
\nof  the  value  of the property as given by either or both the parties, should
\nnecessarily find a place in the proclamation of sale, the need for  the  Court
\nto fix  an upset price may not arise in all cases.  The procedure indicated by
\nP.  N.Ramaswami.J.  in Yellappa Naidu vs.  Venugopal Naidu<\/a> (1957)  70  Mad  LW
\n815 :    (AIR  1958  Mad  423)  can be resorted to i.e., the sale will have to
\ncommence at the higher price given by the Judgment-debtor and, in the  absence
\nof  bidders,  the  price  will  have  to be progressively brought down till it
\nreaches the figure given by the decree-holder and again raised  up,  depending
\nupon the  availability  of bidders.  If, inspite of such a procedure, the sale
\ndoes not take place for want of bidders, then it is open to the court, on  the
\napplication  of  the decreeholder, to fix an upset price for the property at a
\nrate as near as the property would be worth in the estimation  of  the  Court.
\nIf,  even  then,  the sale does not take place, the decree holder can move the
\nexecuting court to reduce the upset price.  It will be open to  the  executing
\ncourt  to  reduce  the upset price or not, depending upon the circumstances of
\nthe case, and, if a reduction is to be made, to decide the extent to which the
\nupset price should be reduced.  It is only for these reasons, the  legislature
\nshould  have  enacted the proviso in two parts, the first part relating to the
\ndiscretionary power of the court to give its own estimate of the value of  the
\nproperty  in  the  sale  proclamation  and  the  second  part  relating to the
\nobligation of the court to include in the sale proclamation the  estimate,  if
\nany, given by either of both the parties.  The first part of the proviso is in
\nthe negative and the second part, in the affirmative.  The significance of the
\nmanner of  drafting  cannot  be  missed.    The  affirmative is used to give a
\nmandate and the negative is used only to emphasise that the court is not under
\na duty to enter its own estimate in the proclamation of sale.  If it  was  the
\nintention  of the legislature that the court should, in no circumstances, give
\nits own estimate of the value of the property, then the wording of  the  first
\npart of the proviso would have been entirely different.  The legislature would
\nhave  clearly  mentioned  that  the  court  was  precluded from making its own
\nestimate of the value of the property and  that  the  proclamation  shall  not
\ninclude the estimate, if any, made by the court.\n<\/p>\n
        21.     In some  cases,  the  court  may  feel  called  upon,  in  the
\ninterests of Justice, to enter in the proclamation of sale its own estimate of
\nthe value   of   the   property.      Take  for  example,  a  case  where  the
\nJudgment-debtor, for some reason has not given his value of the  property  and
\nonly the decree-holder has given his value and that value is grossly low.  The
\nproclamation  of  sale  would  then  contain  only  the  value as given by the
\ndecree-holder, and if the property is brought for sale,  the  bidding  at  the
\nauction can start only at the rate given by the decree-holder and the property
\nmay  be  knocked off at the value given by the decree-holder or for a slightly
\nhigher amount.  The result will be that the property may get sold for  a  very
\nlow price and the Judgment-debtor would be the loser in the bargain.  To avoid
\nsuch  a  situation,  the  court can certainly exercise its discretionary power
\nunder the first limb of the proviso and give its own estimate of the value  of
\nthe property in the sale proclamation.’<\/p>\n
8) In  the  case  reported  in AIR 1988 Madras 114 ( L.Balu Vs.  Periasami and
\nothers), it has been held as follows:-\n<\/p>\n
‘7.  O.43, R.1(j) makes appealable :\n<\/p>\n
        “an order under R.72 or R.92 of O.21 setting aside or refusing to  set
\naside a sale” A reading of the above sub-rule clearly indicates that an appeal
\nwould  lie  only against two categories of orders, viz., one setting aside the
\nsale and the other refusing to set aside the sale.  Either of  the  above  two
\ncontingencies would arise only if an application is made to set aside the sale
\neither  under  R.72 or under the rules covered by R.92 of O.21 viz., Rr.89, 90
\nand 91.   Under  O.21,  R.72  C.P.C  a  sale  could  be  set  aside  when  the
\ndecree-holder  either bids for or purchases the property without the necessary
\npermission of the Court.  ……………….  When the sale is sought  to  be
\nconfirmed  on  the  ground  that no application to set aside the sale has been
\nmade, the question of the Court setting aside the  sale  or  refusing  to  set
\naside the  sale  does not arise.  When an order of confirmation is made on the
\nground that no application to set aside the sale has been made, it  cannot  be
\nstated that  such  an  order would come within the purview of O.43 .R.  1(j) .
\nit is significant that the wording in O.43.  R 1(j) is not general  in  nature
\nso as  to  include  all  kinds  of orders passed under R.92.  It is limited to
\norders setting aside or refusing to set aside the sale.  When therefore a sale
\nis confirmed without  any  such  contingency  having  arisen,  viz.,  when  no
\napplication  for setting aside the sale has ever been made, it should be taken
\nthat such an order of confirmation will not come under O.43.R.1 (j) and it  is
\nnot therefore  an  appealable  order.   The remedy open to the aggrieved party
\nwould be by a revision invoking the inherent powers of this  Court.    In  the
\ninstance  case, the order itself makes it clear that the sale was confirmed on
\nthe ground that no application for setting aside the sale was made in  respect
\nof items 2 and 3.  The present revision, therefore, is maintainable.’<\/p>\n
        19.     In  the reply affidavit filed by the Civil Revision petitioner
\nhe states that under Order 43 Rule 1 (j) of Code of Civil Procedure an  appeal
\nlies  against an order passed under Order 21 Rule 92 setting aside or refusing
\nto set aside a sale.\n<\/p>\n
        20.     It is also the case of the petitioner that Rule 95 of Order 21
\nprovides for an application by a decree holder or auction purchaser  and  that
\nonly under Order 21 Rule 92 the Judgment debtor can move an application to set
\naside the  sale.   The petitioner also states that he filed the application to
\nset aside the sale before delivery had been ordered in favour of the purchaser
\nand therefore, the remedy available is only under Order 21 rule  92,  Code  of
\nCivil Procedure.\n<\/p>\n
        21.     On  a  perusal  of the reasons stated in the affidavit and the
\ncounter affidavit filed on behalf of the petitioner as well as the respondent,
\nrespectively, and on hearing the arguments advanced  by  the  learned  counsel
\nrepresenting  the  petitioner  as  well as the respondent and on analysing the
\ncase laws cited before this  court,  it  is  found  that  the  Civil  Revision
\nPetition No.  2286 of 2005 filed against the order made in Civil Miscellaneous
\nAppeal.16  of 2005 by the Sub-ordinate Judge, Namakkal, stands to be dismissed
\nfor the following reasons.  :-\n<\/p>\n
                The petitioner suffered a decree  in  O.S.No.176  of  1983  on
\n18.04.19 84.    and  failed  to  pay the decree amount necessitating the first
\nrespondent \/  decree  holder  to  file  a  petition  to  execute  the  decree.
\nAccordingly, on 28.07.1995 the decree holder filed in R.E.P.No.243 of 1 995 to
\nattach  and to bring the property of the Judgment debtor to court auction sale
\nto realise the decree amount.  The petitioner even after  receipt  of  notice,
\nhad  failed to file his counter statement in R.E.P.No.243 of 1995 and hence he
\nwas set ex parte on 31.01.1996.  Thereafter, the property had been attached on
\n06.03.1996 and the first respondent \/ decree holder had filed the sale papers.
\nSale proclamation was made on 03.10.1996 and  the  same  was  refused  by  the
\npetitioner \/  Judgement  debtor on 06.12.1996.  Therefore, he was set ex parte
\nin the sale proceedings on 20.01.1997.   In  pursuance  of  the  order,  dated
\n17.10.2000,  sale  was  held  on  20.12.2000 wherein the second respondent had
\nparticipated and his bid amount had been accepted by the court and after sale,
\non the same day, he had deposited 1\/4th of  the  sale  price  of  Rs.18,850\/-.
\nInspite  of  an  opportunity  being  available  under  law  in  favour  of the
\npetitioner, under Order 21 Rule 89 of Code of Civil Procedure to  deposit  the
\nentire sale amount, the petitioner \/ Judgment Debtor had failed to do so, even
\nwhen   the   matter  was  posted  for  confirmation  of  sale  on  06.04.2001.
\nR.E.A.No.1324 of 2001 filed by the petitioner \/ Judgment Debtor to  set  aside
\nthe  sale was dismissed for default on 18.08.2003, and in view of the disposal
\nof the petition under Section 47 of Code of Civil Procedure  ,  the  Executing
\nCourt had  confirmed  the  sale  on  18.08.2003.    Thereafter,  issue of sale
\ncertificate, as provided for under Order 21 Rule 94 Code of  Civil  Procedure,
\nhas also  been  made.    In such circumstances, the learned Subordinate Judge,
\nNamkkal, by his Judgment and decree, dated 14.09.2005, in CMA No.16  of  2005,
\nhad  rightly dismissed the appeal holding that the Executing Court had rightly
\ndismissed the petitioner’s  E.A  after  affording  sufficient  opportunity  on
\nseveral   occasions   and   the   Judgement  debtor,  without  availing  those
\nopportunities, is now attempting only to prolong the proceedings  as  much  as
\npossible.\n<\/p>\n
        In  view  of  the  above circumstances, this Court is of the view that
\nthere is no illegality or irregularity in the Judgment and decree of the Court
\nbelow, dated 14.09.2005, in CMA.No.16 of 2005, warranting interference,  while
\nexercising  the  jurisdiction  under  Section  115 of Code of Civil Procedure.
\nTherefore, the Civil Revision Petition is dismissed as devoid of merits.    No
\nosts.   Consequently,  Civil  Miscellaneous  Petition  20592  of 2005 is also
\ndismissed.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M.Rangasamy vs R.C.Ramasamy on 9 March, 2006 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-56941","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM.Rangasamy vs R.C.Ramasamy on 9 March, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-rangasamy-vs-r-c-ramasamy-on-9-march-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.Rangasamy vs R.C.Ramasamy on 9 March, 2006 - 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