ANTO NITTO Vs. SOUTH INDIAN BANK LIMITED

JUDGEMENT

(1.) This appeal is against the order dismissing an application, E.A. 674 of 1993, filed under Order XXI, Rule 90 read along with Section 151 of the Code of Civil Procedure for setting aside the sale of two items of immovable properties effected on 15-6-1993 in E.P. 652 of 1991 in O.S. No. 666 of 1988 on the file of the Pri. Sub Judge, Ernakulam. Appellant is the second judgment-debtor. Respondent, the South Indian Bank Limited is the decree-holder and auction-purchaser of the properties.

(2.) The main question arising for consideration is whether the sale in question is liable to be set aside or not which has to be considered in the backdrop of the following facts and circumstances.

(3.) The suit was filed by the respondent-Bank for realisation of money by the sale of mortgaged properties described in the plaint schedule. Suit was decreed for recovery of an amount of Rs. 90,71,727.23 together with 15% interest from the date of suit and costs amounting to Rs. 10,31,148.00 by the sale of the mortgaged properties and also from the defendants personally. Since the liability was not discharged within the time allowed by the decree, E.P. 652 of 1991 was filed on 12-7-1991 claiming a total amount of Rs. 1,37,30,901.03. A draft sale proclamation was also filed along with the E.P. for sale of the two items of properties described in the schedule to the E.P. The upset price fixed for item No. 1 in the draft proclamation was Rs. 95 lakhs and that of item 2 was Rs. 5 lakhs. Notice under Order XXI, Rule 66, C.P.C. was issued on 27-3-1991. Order sheet in the E.P. would show that the appellant was served with notice before 16-10-1991. Service of notice was ultimately completed by effecting substituted service by publication as regards some of the respondents, only in the month of October, 1992. The decree-holder filed E.A. 1123 of 1992 on 14-10-1992 specifically under Order XXI, Rule 72A(2), C.P.C. praying for fixing reserve price for items 1 and 2 as Rs. 95 lakhs and Rs. 5 lakhs respectively. On 15-10-1992 the appellant along with the legal representatives of the 5th defendant (5th judgment-debtor) filed objections in the matter of settlement of proclamation. Apart from pointing out certain illegalities and irregularities in the decree passed, it was contended that no notice was served on them under Order XXI, Rule 66. It was further submitted that boundaries of the properties shown in the proclamation are not correct and that the value of the unfinished building standing in item No. 1 has not been shown separately in the proclamation. It was also contended that the upset price shown for item 1 property is very much less than its market value. According to the objectors the properties would be worth at least Rs. 3 crores as it is one situated by the side of M. G. Road, Ernakulam, near Deepa Theatre. Extent of item No. 1 property is nearly 32 cents and the plinth area of the unfinished building situated therein which is almost completed is 30000 sq. ft. The building itself will cost more than Rs. 1 crore. It was thus submitted that all the material particulars shown in the proclamation are incorrect and the sale on the basis of the proclamation will cause substantial prejudice to the judgment-debtors. Taking note of the objections raised regarding the value of the properties shown by the decree-holder in the draft proclamation, the Court has directed amendment of the proclamation by incorporating the value of the properties as shown in the objection. The proclamation was accordingly amended by indicating the value of the properties as Rs. 3 crores and the value of the unfinished building as more than Rs. 1 crore. After the proclamation was amended as directed by the Court, on 10-2-1993 the Court has passed the following order on E.A. 1123 of 1992."Amended draft produced. Upset price fixed for item No. 1 as Rs. 95 lakhs and item No. 2 Rs. 5 lakhs. Proclaim and sell on 27-5-1993."Later, on 31-3-1993 the decree-holder filed E.A. 483 of 1993 for permission to bid. The provision quoted in the above application was order XXI, Rule 72(2), C.P.C. It is significant to note that there was no prayer to fix a reserve price in E.A. 483 of 1993 evidently because there was a separate application filed as early as on 14-10-1992 for fixing a reserve price. On 27-5-1993 the date on which sale was fixed,E.A. 483 of 1993 was allowed recording the submission of the learned Counsel for the judgment-debtors that the judgment-debtors have no objection in allowing the E.A. The sale, was however, adjourned on the basis of E.A. 538 of 1993 filed by the judgment-debtors for adjournment, to 15-6-1993. On 15-6-1993 again the counsel for the judgment-debtors prayed for time. However, the prayer was proposed by the decree-holder. As there was no application for adjournment, properties were ordered to be sold at 1.30 p.m. on that day itself. Accordingly item No. 1 was sold for an amount of Rupees 95,01,000/- and item No. 2 for Rs. 5,01,000/- and purchased by the learned Counsel for the decree-holder on its behalf. The E.P. was posted to 16-8-1993 for confirmation of the sale. Thereafter appellant filed E.A. 674 of 1993 to set aside the sale on 26-6-1993.