VENKITAMMAL AND ANR. Vs. JANAKI AMMAL

JUDGEMENT

(1.) THE Judgment -debtors, whose properties have been sold in execution of the mortgage decree in O.S. No. 79 of 1967 on the file of the District Munsif, Sattur and whose application for setting aside the sale had been dismissed, are the petitioners herein. The execution sale was sought to be set aside mainly on three grounds : (1) that the Court had given permission to the decree -holder under Order 21, Rule 72, Civil Procedure Code, to bid and set -off without notice to the petitioners, (2) that such leave to bid and set -off had been given even at the first sale, and (3) that there has been a gross inadequacy in the price when the decree -holder purchased the properties at Rs. 2,100 while the properties are alleged to be worth more than a Rs. 40,000. As regards the first and second grounds, the first Court overruled them and held that the provisions of the Code of Civil Procedure, do not contemplate that a notice to the judgment -debtor should be given before leave to bid and set -off is given to the decree -holder and that such leave to bid and set -off can be given only in respect of second and subsequent sales and not in the first sale, and that as such the purchase by the decree -holder on the basis of the leave to bid and set -off granted by the Court cannot be said to be illegal or void. As regards the third ground relating to the allegation of gross undervalue and the inadequacy of the price, it took the view that the value of the properties cannot be as large as claimed by the petitioners and that the prices for which the properties have been purchased by the decree -holder were fair and reasonable. It rejected the two documents, filed by the petitioners judgment -debtors; Exhibit A -1, an earlier proclamation in E.P. No. 271 of 1961 in O.S. No. 171 of 1960 on the file of the same Court, and Exhibit A -2, another proclamation issued on 10th October, 1967 in E.P. No. 196 of 1967 in O.S. No. 320 of 1967 on the file of the same Court, to show that the houses in question were valued for more than Rs. 10,000 in 1962 and for more than Rs. 8,000 in 1967 on the ground that the fact that the properties were not sold when proclaimed earlier showed that the properties were not worth the price mentioned in the proclamation and that there is no reason given as to why the properties were not sold for the prices previously fixed. Ultimately the first Court held that there was no irregularity in the conduct of the sale.

(2.) THE Appellate Court had also expressed the view that the permission granted under Order 21, Rule 72 without notice to the judgment -debtors was valid as no notice to the judgment -debtor is contemplated under that Rule, and that there is also no prohibition for the Court granting the permission under Order 21, Rule 72 even in the first sale. As regards the value also, the appellate Court held that the price fetched was fair and reasonable. Regarding Exhibits A -1 and A -2 the Appellate Court expressed the view, that though they show that the upset price for the suit properties was fixed at a larger amount in the earlier orders, it was not known whether there were any bidders for such prices and as such those documents might not be of any help to find out the true value of the property. Both the Courts below have also expressed that the petitioners having remained ex parte after service of notice in the E P. and having allowed the properties to be sold should not be heard to say that the prices fetched were too low.

(3.) IN Sheonath Doss v. Janki Prosad Singh, I.L.R.(1899) Cal. 132, it has been held that leave to bid and setoff should be given very cautiously and the relevant observations are as follows: