The respondent is decree holder in O.S.No.211 of 1996 on the file of the Sub Court, Kallakurichi. It is a suit for recovery of money filed against this petitioner and the suit was decreed as prayed for. He filed E.P.No.3 of 1999 for attachment of sale of the immovable properties of this petitioner and accordingly attachment was effected and sale was also held by the Court on 14.07.2004 in which the respondent was the permitted decree holder in the auction. Pursuant to the sale, he complied with the relevant proceedings, deposited money and stamp papers for execution of the sale deed and the learned Subordinate Judge, Kallakurichi also executed the sale deed dated 14.07.2004 which was handed over to the respondent also.
2.Thereafter, this petitioner filed an application in E.A.No.186 of 2003 under Order 21 Rule 90 r/w Section 43, 94 and 151 C.P.C. challenging the auction conducted by the Court and knocked off in favour of this respondent. In her petition, she alleged as follows -
2(a) The respondent had filed a suit against the petitioner and obtained a simple money decree on 31.8.1998 and purporting to execute the decree, had brought the property of the petitioner and in the court auction sale held on 12.3.2003, the respondent has got himself declared as the permitted decree holder/auction purchaser. Complaining against the material irregularity and illegality in the execution, the proclamation and in the conduct of sale, the petitioner files this application seeking to set aside the sale held on 12.3.2003 in respect of the petition mentioned property in favour of the respondent/decree holder auction purchasers.
2(b) That the property sought to be attached and brought for sale is a residential house, being the only house of the petitioner wherein he is residing and the property is exempted from attachment under Sec.60 of the CPC. Hence, the alleged attachment and sale of the petition is ab-initio void. Therefore,the entire execution proceedings culminating in the court auction sale are bad in law and therefore the sale alleged to have been held on 12.3.2003 is liable to be set aside. Further there are two houses in the property.
2(c) In the execution petition and in the sale proclamation, the measurement of the property is not at all mentioned. The property measures 22= feet east west and 105' north south with a thatched house therein within the Thiyagadurugam panchayat limits. The omission to give the relevant details of actual measurements has resulted in the property not fetching a reasonably fair price in the sale. The property will be worth not less than Rs.3 lakhs on the date of the court auction sale. Infact the property was under a mortgage in favour of the decree holder himself for Rs.40,000/- on a mortgage deed dated; 27.1.1993 in which the then value of the property is given as Rs.80000/-. Therefore, in the year 2003, 10 years thereafter, the property is worth more than Rs.3 Lakhs and the sale in favour of the respondent for paltry sum of Rs.90,100/- is highly untenable and is liable to be set aside.
2(d) That there has been no valid attachment of the property and no valuation of the property by a court amin. Further there has not been due service of necessary notices as contemplated under Or.21 of the code of Civil Procedure. The decree holder claims to be a permitted decree holder within the meaning of Rule 72 of Or.21 of CPC. Grant of permission to the decree holder is invalid in law and the purchase by the decree holder is legally and factually untenable and is therefore liable to be set aside. It is seen that the upset price appears to have been contrary to the amended provision of the code of Civil Procedure and appears to have been periodically reduced. Such fixing of upset price and reduction of the same at the request of the decree holder is contrary to law and has caused great prejudice to the petitioner resulting to grave mis-carriage of justice and that there has been not only violation of the rule of procedure enjoined under the C.P.C., but also resulting in the purchase not having adequate means of knowledge of knowing the actual market value of the property.
2(e) That there has been no service of any notice under Rule 72 of Or.21. CPC and grant of permission to bid and set off appear to have been made in favour of the respondent in violation of the well established principles of natural justice. There does not appear to have been any valid and proper proclamation about the conduct of sale on 12.3.2003. It is apparent from the fact that there has not been any other bidder at the time of sale on 12.3.2003 except the respondent himself who had clandestinely manoeuvred to have the property knocked off in his favour for Rs.90,100/- the amount being about 1/3rd of the actual market value of the property. Thus, the petitioner is greatly prejudiced. The residential house property is sought to be taken away by the decree holder by practicing fradulent representation to the court.
2(f)That the attendant irregularities culminating in the court auction sale on 12.3.2003 are of such serious nature which go to the root of execution in the matter and therefore as a court of law and equity, the court should exercise discretion in favour of the petitioner, especially when it is claimed by the respondent that there is a prior mortgage also in his favour in respect of the petition mentioned property. For these among other grounds to be stated at the time of enquiry, the court must be pleased to pass an order setting aside the court auction sale held on 12.3.2003. Hence, this petition.
3.The following are the allegations contained in the counter -
3(a) The petition filed to set aside the auction held on 12.3.2003 is not valid. There is no malpractice was taken place in the auction. Petitioner's property was brought to auction at the 5th occasion and it was properly established in the village and the respondent thus participated in the auction and one in the bid. There is no valid reason to set aside the auction. A thatched house is situated in a portion of the petition mentioned property and is not used for any agricultural purpose. Petitioner is not having any lands. It is not correct that the property cannot be brought into auction u/s of 60 of CPC.
3(b) In the execution proceedings, petitioner was given time on 17.3.1999 and 21.4.1999 and on those days he had remitted part payment and after giving an opportunity on 21.4.1999 to the petitioner to remit the amount and attachments was ordered on 14.6.1999. Accordingly, the property was attached and it was proclaimed on 28.1.2000 and petitioner entered into appearance through her counsel and case was posted for filing her counter on 10.4.2000, 16.6.2000, 19.7.2000 and 21.8.2000. He had sought adjournment for paying the decree amount up to 4.9.2000. Since on 4.9.2000 he had not paid the amount, E.P. was posted to 11.10.2000 for auction and auction was fixed on 14.3.2001 for a upset price of Rs.1,75,000/- since nobody can come forward to participate in the auction. A petition was filed to reduce the upset price and the Execution Application was posted on 8.6.2001 and on that he entered into appearance through his counsel and the petition was posted to 4.7.2001.
3(c) Since he had no objection to reduce the upset price, the upset price was reduced to Rs.1,25,000/- and the date of auction was fixed as 5.9.2001. Since on 19.9.2001 the petitioner paid Rs.1000/- for part satisfaction and the sale was adjourned to 03.10.2001. Since on 3.10.2001, nobody had come forward to participate in the auction, respondent had filed E.A.142/2001 to reduce in the auction, respondent had filed E.A.142/2001 to reduce the upset price and the interlocutory application was posted to 21.11.2001. On that date the notice was not served, so the petition was adjourned to 21.12.2001. On that date, petitioner entered into appearance through her counsel and for filing his objections the petition is posted to 31.1.2002. At the request of the petitioner, petition was adjourned to 8.2.2002 for filing his objection. On 8.2.2002, as the petitioner had stated that he had no objection for reducing the upset price, the upset price were reduced to Rs.1,10,000/- and the date of auction was fixed as 24.4.2002. Since nobody can come forward to participate in the auction, again this respondent had filed E.A.69/02 and 70/2002 for reducing the upset price and also permission to participate in the auction. And said petition were posted on 26.6.2002.
3(d) On 26.6.2002, petitioner entered appearance through her counsel for filing objections in petition. The petition was posted to 17.7.2002 and 29.7.2002, 12.9.2002, 30.09.2002. Since the petitioner had no objections, the petitions were allowed and the date of auction was fixed on 13.11.2002. Petitioner had paid Rs.1000/- each at three hearing and the case was adjourned to 4.12.2002 and since on that date nobody has participated in the auction, respondent had filed this petition to reduce the upset price and the petition was posted to 2.1.2003. On that date, petitioner entered into appearance through her counsel and sought adjournment for filing her counter and the E.A. was adjourned to 30.1.2003. Since on that date petitioner had stated that she had no objection to reduce the upset price, the value of the property was fixed as Rs.90,000/- and the date of auction was fixed as 12.3.2003. On 12.3.2003, the auction was conducted and the respondent knocked off in the auction in his favour for Rs.90,100/-.
3(e)The auction was conducted only on giving opportunity to the petitioner to file his objections in E.P.3/99. In all the hearings, petitioner was given an opportunity to file his objection. Petitioner is barred from questioning the auction. The attached property is a garden to an extent of 0.04 cents and a thatched house is situated in a portion of the property and the thatched house is in two portions. Petitioner had mortgaged the said property on 27.1.1993 for Rs.40000/-. In the mortgage deed the value of the property is mentioned as Rs.80000/-. But in the auction, the upset price is fixed as Rs.90000/-. As per the mortgage deed, plaintiff is entitled for Rs.76000/- which includes Principal and interest the property was sold for Rs.90000 + Rs.76000 = Rs.166000/-. The property worth Rs.80000/- in the year 1993 was sold in auction on 12.3.2003 for Rs.1,66,000/-. The value of the property is correct which would not fetch Rs.3,00,000/-.
3(f) In the Execution Petition the extent and the 4 boundaries are clearly mentioned. The auction was conducted properly by giving notice and petitioner had also paid amounts in part. The suit property is in an invaluable place. Hence, nobody came forward to purchase the property in auction. Only in the auction conducted on the 5th occasion, respondent bid the auction in his favour. Respondent had not shown any hurry in purchasing the property in auction. The Execution proceeding was filed on 13.1.1999 and it was sold only on 12.3.2003. Hence, petition may be dismissed.
4.The learned counsel for the petitioner Ms.Meenal would submit that in as much as the sale was held for a price which is more excessive than the actual amount claimed in the E.P. and it is an excessive sale and as per the provisions of CPC, the portion of the properties belonging to the judgment debtor which would be sufficient to satisfy the decree shall alone be brought to sale and that this excessive sale ought to be set aside.
5.It is her further contention that at the time of mortgage in the year 1993, the value of the property was Rs.80,000/- and the same was mortgaged for Rs.40,000/- but the upset price was fixed at Rs.90,000/-, that the upset price fixed by the court is very low which does not reflect the actual market value of the property and that the sale held has been conducted unlawfully.
6.Conversely, the learned counsel for the respondent Mr.P.Valliappan would submit that the market value of the property at the outset was fixed at Rs.1,75,000/- by the Court and on four occasions, since the sale was not held for lack of bidders, for further auction, the upset price of the property was reduced then and there and later it was fixed at Rs.90,000/-. At that time, the respondent filed application to permit him to bid in the auction and the request was also acceded to by the execution court. Thereafter, he took the property in Court auction sale.
7.The learned counsel for the respondent points out that while the upset price of the property was reduced to Rs.1,10,000/-, the petitioner had stated no objection, so also on a later occasion while the upset price was reduced to Rs.90,000/-, expressed no objection to reduce the upset price. These aspects have also been incorporated in the order challenged before this Court.
8.The learned counsel for the respondent in support of his contention would place reliance upon a Full Bench decision of the Supreme Court reported in AIR 1974 S.C. 1331 [M/s.Kayjay Industries (P) Ltd., v. M/s.Asnew Drums (P) Ltd. and others] wherein it is held that when the Court had exercised the conscientious and lively discretion in concluding the sale at Rs.11.5 lakhs, mere inadequacy of price cannot demolish every Court sale and that not even the valuer's report was produced by the judgment debtor. So far as the facts of the present case are concerned, the judgment debtor did not examine herself to establish the versions contained in her affidavit nor had she sought for appointment of any Advocate Commissioner to inspect and value the property with the assistance of a qualified engineer. She has not initiated any steps to bring home the market value of the property as per her contention before the Court.
9.In AIR 1994 S.C. 1291 [Ghanshyamdas and another v. Om Parkash and another] it is held as follows -
11. It is correct to hold, as the High Court has done, that the proceedings taken by Jamnadas under Order 21, Rule 58 and Rule 63 of the Code would not constitute res judicata. But, where no objection was raised to the auction sale when such objections ought to have been raised, would disentitle the appellants to raise the same. Thus, on questions of law, as determined by the Court of appeal and confirmed by the High Court, we see no reason to interfere. However, we think equitable considerations will have to provail in this case, for the following reasons :
10.After following the decisions of the Apex Court and referring to the judgments of other High courts, I have observed in a case reported in 2009 CIJ 332 Mad [K.J.Prakash Kumar and others v. Rasheeda Yasin and another] that if the judgment debtors had notice from Court and acquiesced, but taking no action before the date of sale proclamation, they are precluded from assailing its legality or correctness on the subsequent point of time alleging that the execution sale is bristled with material irregularities. Identical view has been expressed by this Court in a judgment reported in 2009 (5) MLJ 1587 (Mad NOC) [Saravana Theatre v. T.Ramalingam].
11.In yet another decision in the case of similar nature reported in (2006) 4 MLJ 33 [Times Guarantee Limited v. B.M., Industrial Development Bank of India], after analysing the facts akin to those available in this case, it is held that sanctity should be attached to the auction sale conducted for recovery of debt due to the Banks and financial institutions, that if such sales are disputed in Courts for extraneous reasons, the intending purchasers would be forced to think twice before participating in the auction sale as they also would be purchasing litigation.
12.A Full Bench of Supreme Court in a decision reported in AIR 2006 SC 1871 [Saheb Khan v. Mohd. Yusufuddin & Ors.] has held that before the sale can be set aside, merely establishing a material irregularity or fraud will not do and that the applicant must go further and establish to the satisfaction of the Court that the material irregularity or fraud has resulted in substantial injury to him.
13.The irresistible conclusion which could be reached in this case is that when the judgment debtor had expressed no objection while fixing the upset price and thereafter reducing the upset price, she cannot come again and agitate before the Court that an irregularity has crept into the Court sale alleging that it would vitiate the same. As a consenting party to the reduction of upset price by the Court on earlier two occasions, she is not entitled to object the Court sale on a later date contending that the market value of the property is scanty.
14.This Court does not find any infirmity in the order impugned before this Court legally or factually which deserves to be confirmed and it is accordingly confirmed. The Civil Revision Petition is devoid of merits.
15. In fine, the Civil Revision Petition is dismissed. No costs.
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