The order passed in E.A.No.80 of 2006 in E.P.No.379 of 2004 in O.S.No.1213 of 1996 by the Principal District Munsif Court, Nagercoil, upheld in C.M.A.No.11 of 2006 by the Second Additional Subordinate Court, Nagercoil is being challenged in the present civil miscellaneous second appeal.
2.The appellant herein as petitioner has filed the petition in question under Order 21 Rule 90 of the Code of Civil Procedure, 1908 praying to set aside the sale made in E.P.No.189 of 1998 on 22.01.2004, wherein the present respondents have been shown as respondents.
3.It is stated in the petition that the first respondent herein as plaintiff has instituted Original Suit No.1213 of 1996 on the file of the Principal District Munsif Court, Nagercoil praying to pass a money decree in his favour, wherein the petitioner has been shown as sole defendant. In Original Suit No.1213 of 1996 an ex-parte decree has been passed on 23.07.1997 and the same has been put into execution in E.P.No.189 of 1998. In E.P.No.189 of 1998, the property mentioned therein has been brought for auction sale and the same has been sold on 22.01.2004. In the said sale, the second respondent herein has purchased the same as Court auction purchaser. Further it is stated in the petition that the property sold through Court auction is worth of Rs.5,00,000/-, but the same has been sold for meagre sum of Rs.22,500/-. Further with regard to reducing upset price no notice has been sent to the petitioner. Under the said circumstances, the sale in question has been effected by material irregularities and further a clear fraud has been committed upon the petitioner. Under the said circumstances, the present petition has been filed praying to set aside the sale dated 22.01.2004.
4.In the counter filed on the side of the first respondent/decree holder, it is stated that in E.P.No.189 of 1998 the property in question has been attached and subsequently, an application has been filed under Order 21 Rule 58 of the Code of Civil Procedure and the same has been dismissed on 25.06.2001. The petitioner being a judgment debtor has been represented by his counsel. It is false to say that the sale in question has been made by way of playing fraud and no material irregularity has been made in conducting sale. There is no merit in the petition and the same deserves dismissal.
5.The Principal District Munsif Court, Nagercoil, after considering all the contentions raised on either side, has dismissed the petition. Against the dismissal order, the petitioner as appellant has filed C.M.A.No.11 of 2006 on the file of the first appellate Court. The first appellate Court, after hearing both sides and after evaluating the evidence available on record, has dismissed Civil Miscellaneous Appeal, whereby and whereunder confirmed the order passed in E.A.No.80 of 2006. Against the concurrent judgments, the present Civil Miscellaneous Second Appeal No.8 of 2009 has been filed on the file of this Court.
6.As agreed by the learned counsel appearing for both sides, the present civil miscellaneous second appeal is disposed of on merits at the stage of admission.
7.On the side of the appellant/petitioner/ judgment debtor, the following substantial questions of law have been raised for consideration; "a)Whether the Courts below are correct in coming to the conclusion that the non-service of notice to the judgment debtor is only a minor irregularity and would the Courts below are need not follow the mandatory provisions before reducing the upset price?
b)Whether Section 5 of the Limitation Act, and Section 148 of C.P.C. are not applied to application under Order 21 Rule 89?
c)Whether the Lower Appellate Court is correct in dismissing the appeal while allowing I.A.No.87 of 2008 permitting the appellant to deposit the entire decree amount?
d)Whether the findings of the Courts below are perverse for non- considering the evidence that the auction purchaser has purchased 85 Sq. feet for Rs.1,89,200/- out of 343 sq. feet and very same auction purchaser purchase the remaining extent only for Rs.22,500/- whether the same cannot be treated as irregularity conducting the auction sale?"
8.The learned counsel appearing for the appellant/petitioner/judgment debtor has repeatedly contended that Original Suit No.1213 of 1996 has been instituted by the first respondent herein as plaintiff praying to pass a money decree in his favour, wherein the present appellant/petitioner/judgment debtor has been shown as sole defendant and in Original Suit No.1213 of 1996 an ex-parte decree has been passed on 23.07.1997 and the same has been put into execution in E.P.No.189 of 1998, wherein the property in dispute has been brought for sale and the property in question is worth of Rs.5,00,000/-, but the decree holder has given low estimation and the Principal District Munsif Court, Nagercoil has also sold the same for a meagre amount of Rs.22,500/-. Further with regard to reducing upset price, no effective service has been made to the appellant/petitioner/judgment debtor and in fact, fraud has been committed upon him in conducting sale in E.P.No.189 of 1998 and under the said circumstances, the present petition has been filed under Order 21 Rule 90 of the Code of Civil Procedure, but the Courts below, without considering the contentions urged on the side of the appellant/petitioner/judgment debtor, have erroneously dismissed the petition and therefore, the concurrent orders passed by the Courts below are liable to be interfered with.
9.In order to repel the argument advanced by the learned counsel appearing for the appellant/ petitioner/judgment debtor, the learned counsel appearing for the respondents has also equally contended that the first respondent herein has obtained an executable decree in Original Suit No.1213 of 1996 and the same has been put into execution in E.P.No.189 of 1998, wherein the property in dispute has been brought for sale and the same has been sold on 22.01.2004 subjected to previous encumbrance of Rs.60,000/- and the same has been confirmed on 22.03.2004 and on 07.04.2004 necessary sale certificate has been issued in favour of the second respondent herein and in pursuance of the same, the second respondent herein as petitioner has filed E.P.No.379 of 2004 on 07.10.2004, wherein the present appellant has made his appearance through his counsel on 05.01.2005 and the present petition has been filed on 03.07.2006 and therefore, the present petition is barred by limitation and further in E.P.No.189 of 1998 on the side of the appellant/petitioner/judgment debtor effective representation has been made through his counsel and it is false to say that no notice has been issued to the appellant/petitioner/judgment debtor in reducing upset price and further no material irregularity has occurred in conducting sale in respect of the property in dispute and the Courts below, after considering all the contentions raised on either side, have dismissed the present petition and therefore, the concurrent judgments passed by the Courts below are perfectly correct and the same do not require any interference.
10.As stated earlier, the present petition has been filed under Order 21 Rule 90 of the Code of Civil Procedure and the same reads as follows; "Application to set aside sale on ground of irregularity or fraud.- (1)Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in purchasing or conducting it. (2)No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the appellant has sustained substantial injury by reason of such irregularity or fraud.
(3)No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.
Explanation.- The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule."
11.From the close reading of the provision of the said Order, the Court can easily discern that an application is maintainable under Order 21 Rule 90 of the Code of Civil Procedure on the ground of irregularity or fraud and further it is made clear that unless substantial injury sustained by the judgment debtor is proved, no sale can be set aside merely on the ground of irregularity or fraud.
12.In the instant case, it has been mentioned on the side of the appellant/petitioner/judgment debtor that the property in question is worth of Rs.5,00,000/-, whereas the same has been sold for a paltry sum of Rs.22,500/- and thereby the appellant/petitioner/judgment debtor has sustained substantial injury.
13.It is an admitted fact that the property in dispute is an extent of 343 sq. feet and the same has been sold for a sum of Rs.22,500/-, subjected to the previous encumbrance of Rs.60,000/-. Even though it has been urged on the side of the appellant/ petitioner/judgment debtor that the property in dispute is worth of Rs.5,00,000/-, no trustworthy document has been forthcoming so as to accept the said contention. Therefore, the value quoted on the side of the appellant/petitioner/ judgment debtor cannot be entertained.
14.The learned counsel appearing for the appellant/petitioner/judgment debtor has advanced his argument mainly on the ground that on various occasions the upset price of the property sold has been reduced and no effective service of notice has been given to the appellant/petitioner/judgment debtor and under the said circumstances, the present petition is legally maintainable under Order 21 Rule 90 of the Code of Civil Procedure.
15.It is seen from the records that in pursuance of ex-parte decree dated 23.07.1997 passed in Original Suit No.1213 of 1996, E.P.No.189 of 1998 has been filed, wherein the appellant/petitioner/ judgment debtor has been represented by his counsel. Since in E.P.No.189 of 1998 the present appellant/petitioner/judgment debtor has represented by his counsel, it is needless to say that the appellant/petitioner/judgment debtor has had sufficient knowledge about the petition filed for reducing upset price. Under the said circumstances, the main contention urged on the side of the appellant/petitioner/judgment debtor cannot be accepted.
16.The learned counsel appearing for the respondents has mainly argued that the sale in question has been made on 22.01.2004 and the same has been confirmed on 23.02.2004 and the sale certificate has been issued on 07.04.2004, but the present petition has been filed on 03.07.2006 and therefore, the present petition is clearly barred by limitation.
17.It is an axiomatic principle of law that in order to set aside a Court sale, petition has to be filed within 60 days from the date of sale as per
Article 127 of the Limitation Act, 1963. The only defence taken on the side of the appellant/petitioner/ judgment debtor is that the present petition has been filed on the ground of fraud and therefore, within one year from the date of knowledge of fraud, the present petition has been filed and the same is well within the period of limitation.
18.In support of the above contention,
Section 17 of the Limitation Act, 1963 has been drawn to the attention of the Court and the same reads as follows;
"Effect of fraud or mistake.- (1)Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,_
(a)the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b)the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or
(c)the suit or application is for relief from the consequences of a mistake; or
(d)where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him; the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:
Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which-
(i)in the case of fraud, has been purchased for valuable consideration by a person who was not a part to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or
(ii)in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or
(iii)in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.
(2)Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the Court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order:
Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be."
19.In the instant case as stated in many places, the present petition has been filed mainly on two grounds. The first and foremost ground is material irregularity and the second ground is fraud. It has already been pointed out that no material irregularity has occurred in conducting the sale of the property in dispute. Even though in the petition it has been alleged that fraud has been committed upon the appellant/petitioner/judgment debtor, the details of alleged fraud have not been specifically pleaded in the petition. It is an acknowledged principle of law that details of fraud must be specifically pleaded in the concerned pleadings. But, as taunted earlier, no such details are found place in the present petition and on that score also fraud alleged to have been made upon the appellant/petitioner/judgment debtor cannot be accepted. Since the alleged fraud has not at all been proved on the side of the appellant/petitioner/ judgment debtor, it is needless to say that as per
Article 127 of the Limitation Act, 1967, this petition is clearly barred by limitation.
20.Even assuming without conceding that the present petition is not barred by limitation, it has already been narrated in detail that no material irregularity has occurred in conducting the sale of the property in dispute and further in E.P.No.189 of 1998, the appellant/petitioner/judgment debtor has been represented by his counsel and all the proceedings have been routed only with the knowledge of his counsel. Therefore, it is quite clear that no fraud has been committed upon the appellant/ petitioner/judgment debtor in conducting the sale of the property in dispute. The Courts below, after evaluating all the contentions raised on either side, have rightly rejected the contention urged on the side of the appellant/petitioner/judgment debtor.
21.The learned counsel appearing for the appellant/petitioner/judgment debtor has drawn the attention of the Court to the decision reported in AIR 2008 Supreme Court 2061 (M/s.Mahakal Automobiles & Anr. Vs. Kishan Swaroop Sharma), wherein the Honourable Apex Court has culled out the following circumstances under which a sale can be set aside:
i)There was no notice served upon the judgment-debtor under Order 21, Rule 54 (1-A);
ii)There was no valuation of the property carried out;
iii)There was no proclamation of sale as per the statutory provisions of M.P. Civil Court Rules, 1961 read with Order 21, Rule 66.
iv)There was no publication of the sale.
22.In the instant case, as stated in many places, no irregularity has occurred in conducting sale. Even at the risk of repetition, the Court would like to point out that in E.P.No.189 of 1998 the appellant/petitioner/judgment debtor has been represented by his counsel and his counsel has had knowledge with regard to the proceeding. Therefore, the conditions mentioned in the above decision are not in existence in the present case. Under the said circumstances, the dictum found in the decision referred to above cannot be attuned in the present case.
23.The learned counsel appearing for the respondents has also relied upon the following decisions:
a)2007 (4) MLJ 796 (Marimuthammal and others Vs. Vaithi and others) wherein this Court has held that if the judgment debtor has not raised his objection with regard to upset price, the Court auction sale cannot be set aside under Order 21 Rule 90 of the Code of Civil Procedure.
b)1990 (1) MLJ 134 (Kamatchiammal and another Vs. A.Ramalingam Chettiar and another) wherein also this Court has held that notice issued to judgment debtor under Order 21 Rule 66 of the Code of Civil Procedure and judgment debtor has not filed any counter or assisting the Court in settling the sale proclamation and at a later stage, he cannot allege irregularity in the proclamation.
c)2006 (4) SCC 476 (Saheb Khan Vs. Mohd. Yousufuddin and others) wherein the Honourable Apex Court has held that for setting aside a Court sale under Order 21 Rule 90 of the Code of Civil Procedure, the following conditions must be fulfilled;
i)establishing a material irregularity or fraud,
ii)establishing to the satisfaction of the court that the material irregularity or fraud had resulted in substantial injury to the applicant. Further it has been held that details of fraud must be specifically stated and bald allegations are not at all sufficient.
24.In the instant case as stated in many places, the appellant/petitioner/judgment debtor has taken active part in E.P.No.189 of 1998 through his counsel. But, nothing has been murmured with regard to fixing of upset price on the side of the appellant/petitioner/judgment debtor and further the sale has been made on 22.01.2004 and the same has been confirmed on 22.03.2004 sale certificate has been issued on 07.04.2004 and after a lapse of one and half years, the appellant/petitioner/judgment debtor has come forward with the present petition purely on the basis of false grounds. Therefore, viewing from any angle, the sale made on 22.01.2004 in E.P.No.189 of 1998 cannot be set aside.
25.The learned counsel appearing for the appellant/petitioner/judgment debtor has advanced his residual argument stating that in the first appellate Court, the appellant/petitioner/judgment debtor has deposited the entire sale consideration with solatium and on that ground also, the sale dated 22.01.2004 is liable to be set aside.
26.Of course, it is true that the appellant/petitioner/judgment debtor has deposited sale amount together with soalitum and that itself has not paved the way for setting aside the sale dated 22.01.2004 since the present petition has been filed mainly on the ground of material irregularity as well as fraud. Therefore, viewing from any angle the concurrent judgments, passed by the Courts below are not liable to be interfered with and further all the substantial questions of law raised on the side of the appellant/petitioner/judgment debtor are not factual and legally sustainable and altogether the present civil miscellaneous second appeal deserves to be dismissed.
27.In fine, this civil miscellaneous second appeal deserves dismissal and accordingly is dismissed without costs. Consequently connected miscellaneous petition is also dismissed. The order passed in E.A.No.80 of 2006 in E.P.No.379 of 2004 in O.S.No.1213 of 1996 by the Principal District Munsif Court, Nagercoil, upheld in C.M.A.No.11 of 2006 by the Second Additional Subordinate Court, Nagercoil is confirmed. However it is made clear that the appellant/ petitioner/judgment debtor is at liberty to withdraw the amount deposited in the first appellate Court forum.
gcg To
1.The II-Additional Subordinate Judge, Nagercoil.
2.The Principal District Munsif, Nagercoil.