PALANIAPPA GOUNDER Vs. NALLAMUTHU GOUNDER AND ORS.

JUDGEMENT

(1.) THE judgment -debtor in O.S. No. 34 of 1970, Sub -Court, Erode, is the petitioner in this civil revision petition, which is directed against the order of the Courts below, dismissing an application filed by the petitioner here in to declare the Court -auction -sale held on 3rd January, 1974 as void. On 28th November, 1970, one Perumal Gounder, the husband of the second respondent and father of respondent 3, herein, obtained a decree in O. S. No. 34 of 1970, against the petitioner for the recovery of a sum of Rs. 5,000 with interest at 6 1/4 per cent, per annum from 25th November, 1967, till 28th November, 1970 and thereafter at 6 per cent, per annum till the date of realisation and costs. This decree was put into execution in E.P. No. 40 of 1973 in O.S. No. 34 of 1970 and the decree -holder prayed for the realisation of the amounts due under the decree by the sale of certain properties belonging to the petitioner. In the course of those proceedings the petitioner, though served with notice, did not appear but remained ex parte. In the sale proclamation, the value of the properties sought to be proceeded against was given by the decree -holder as Rs. 3,000, while the Amin had valued it at Rs. 10,000 subject to an usufructuary mortgage and since the petitioner had remained ex parte, initially, the Court fixed the upset price at Rs. 10,000. Later, on an application filed by the decree -holder in E.A. No. 750 of 1973 in E.P. No. 40 of 1973, the upset price originally fixed at Rs. 10,000 was reduced by order, dated 23rd October, 1973 to Rs. 7,500. It is now common ground that notice of this application was not given to the petitioner. Thereafter, the properties were sold on 3rd January, 1974 and purchased by the auction -purchaser 1st respondent herein for Rs. 7,505, subject to the encumbrance referred to earlier. On 24th April, 1974, the petitioner filed E.A. No. 610 of 1974 in E.P. No. 40 of 1973 in O.S. No. 34 of 1970, Sub -Court, Erode, praying that the Court sale held on 3rd January, 1974, should be declared void. According to the case of the petitioner, he became aware only on 5th February, 1974, about the sale of his properties in court -auction on 3rd January, 1974 and the sale in favour of the 1st respondent, herein is void and affected by irregularities and fraud in the publication and conduct of the same. The properties sold, according to the petitioner, are first class nanja lands of the value of Rs. 10,000 per acre and that properties worth Rs. 35,000 had been sold only for Rs. 7,505 and the gross inadequacy of the price of the properties sold would indicate the fraudulent nature of the sale. The petitioner also complained of an omission to mention two wells in the sale proclamation which, according to him, constituted a material irregularity. No publication of the proposed sale by tomtom was made in the village, according to the petitioner. The petitioner further stated that though originally the upset price was fixed at Rs. 10,000, subsequently, that had been reduced to Rs. 7,500, without notice to the petitioner and that such reduction in the upset price is a material alteration in the sale proclamation without notice to the petitioner and the same would be a material irregularity, which would vitiate the entire sale. The petitioner claimed that these irregularities would fall within the scope of Section 47 of the Code of Civil Procedure and prayed that the sale held on 3rd January, 1974, should be declared void.

(2.) THIS application was resisted by the decree -holder on the ground that the petitioner was fully aware of the Court -auction -sale even before the date of sale and that the sale was perfectly valid and binding on the petitioner. The proceedings and the sale had been properly conducted as required by law, according to the decree -holder and there was no irregularity or fraud in the conduct of the sale as claimed by the petitioner and that the properties were only dry lands and they have been sold subject to a mortgage. The decree -holder stated that though originally the upset price was fixed at Rs. 10,000 subsequently, it was reduced to Rs. 7,500 as there were no bidders and thereafter, the properties were sold for a very reasonable price. There were no wells in the lands, according to the decree -holder, and wide publicity about the sale was given in the village. The decree -holder also raised a plea that the sale notice was served on the petitioner and that he had kept quiet and therefore, the petitioner would be estopped from challenging the sale of the properties. Even after the reduction of the upset price, according to the decree -holder, the petitioner was given notice of the proclamation and even then the petitioner did not raise any objection and that therefore, there is no material irregularity, which would vitiate the same. An objection that the application is barred by time was also raised. The auction -purchaser 1st respondent herein contended that the sale held on 3rd January, 1974, was not void nor was it affected by any material irregularity and that the sale had been effected for a proper price. Adequate publicity of the sale was given in the village concerned and it was only thereafter, the sale was held. The petitioner, according to the auction -purchaser, was fully aware of the proceedings relating to the reduction of the upset price and that the application to declare the sale void was filed only with a view to protract the proceedings. In other respects, the auction -purchaser adopted the counter -filed by the decree -holder. In an additional counter -filed by the auction -purchaser, he raised a plea that the application should have been filed under Order 21, Rule 90 of the Code of Civil Procedure within 30 days from the date of the sale and merely by calling it as an application which would fall under Section 47, Civil Procedure Code, the petitioner cannot get over the bar of limitation. The petitioner filed a rejoinder statement to the effect that since he did not receive any notice in the application to reduce the upset price, the defect would amount to a material defect in the sale proclamation and therefore, the sale held on 3rd January, 1974, would he void. The petitioner also claimed that the failure to issue a notice in the petition to reduce the upset price is an irregularity and illegality and renders the sale void and therefore, the application would be in time.

(3.) THE main point urged by the learned Counsel for the petitioner in this civil revision petition is that the reduction of the upset price earlier fixed without notice to the petitioner would amount to an irregularity, which would relate to the publication and conduct of the sale and which would fall within the scope of Section 47 of the Code of Civil Procedure and therefore, the Court sale held on 3rd January, 1974, should declared void. Elaborating this, the learned Counsel for the petitioner stated that the alteration of the upset price originally fixed in the sale proclamation without notice to the petitioner would result in the issue of a fresh proclamation consequent to the reduction of the upset price without the knowledge of the petitioner and that amounts to the alteration of the proclamation already settled to the prejudice of the judgment -debtor and would thus constitute an irregularity within the meaning of Section 47, Civil Procedure Code. Reliance in this connection was placed by the learned Counsel for the petitioner upon the decisions in Gnanabaranam Pillai v. Rathinam Pillai : AIR 1972 Mad 364 ; Esakki Doss v. Chelliah and Anr., 1974 T.L.N.J. 100 and N. Shamsuddin v. M.K. Ponnayyan, (1973) 2 M.L.J. 30. It was also further submitted by the learned Counsel for the petitioner that the circumstance that the petitioner remained ex parte is not a ground which would preclude the Court from considering whether the reduction of the upset price without notice is in order. Reliance was also placed by the learned Counsel for the petitioner upon the decision of the Supreme Court reported in Takkaseela Padda Subba Reddi v. Pujari Padmauathamma : [1977] 3 SCR 692. On the other hand the learned Counsel for the respondent submitted that even on the footing that notice of the application for the reduction of the upset price should have been given to the judgment -debtor and that there was a failure to do so, that would at best, even according to the learned Counsel for the petitioner, constitute only an illegality or irregularity, which would vitiate the sale. Even in such a case, according to the learned Counsel the proper remedy of the petitioner would only be an application under Order 21, Rule 90 of the Code of Civil Procedure and not under Section 47, Civil Procedure Code. The learned Counsel for the respondent in this connection relied upon the decision of the Full Bench in A.P.V. Rajendran v. S.A. Sundararajan and Ors. : AIR 1980 Mad 123, in support of his contention that the irregularity complained of in the instant case could only be an irregularity in the publishing or the conduct of the sale within the meaning of Order 21, Rule 90, Civil Procedure Code, and therefore Section 47, Civil Procedure Code, cannot be invoked and consequently the application filed by the petitioner, not having been filed within 30 days from the date of the sale, would be out of time. The learned Counsel for the respondent also relied upon the decision in K. Krishnaswami Pillai v. The Kumbakonam City Union Bank Ltd. and Ors., (1979) 1 M.L.T. 180, to contend that the non -service of the notice in the application for the reduction of the upset price cannot be taken as a ground for setting aside the sale especially when the petitioner had remained ex parte, throughout till the date of sale. In the instant case, it is not in dispute that the petitioner was not served with notice in the application for the reduction of the upset price filed by the decree -holder in E.A. No. 750 of 1972. Prior to the introduction in 1972 of the Tamil Nadu amendment in Order 21, Rule 66(d)(1), Civil Procedure Code, the Court was under no obligation, under the statute, to fix the upset price and therefore, when the Court proceeded to fix or modify the upset price originally fixed, such an act cannot be said to have been pursuant to any obligation imposed upon the Court under the terms of Order 21, Rule 66, Civil Procedure Code. Therefore, with reference to the provisions of Order 21, Rule 66, Civil Procedure Code, as they stood to prior to the amendment in 1972, whenever the Court either fixed the upset price or altered it, it was under no obligation to give notice to the judgment -debtor. After the introduction or Order 21, Rule 66(d)(1) in Civil Procedure Code by Tamil Nadu amendment, Rule 196 of the Civil Rules of Practice was also amended and thereafter, the Court was specifically empowered to fix the upset price of the property, which the Courts have been doing even earlier, as well as the lots, if any, in which the property shall be sold. Interpreting that rule in S.N. Shamsuddin v. M.K. Poyyamani, (1973) T.L.N.J. 398, Ismail, J., as he then was, held that once the upset price is so fixed and forms part of the sale proclamation and the sale proclamation has been settled after notices to the judgment -debtors, no material alteration in the said sale proclamation can be made subsequently without notice to the judgment -debtor. It is therefore quite evident that after the introduction of Tamil Nadu amendment in Order 21, Rule 66(d)(1) and the amendment effected in Rule 196 of the Civil Rules of Practice, it is not open to the Court to reduce the upset price already fixed without notice to the judgment -debtor. Even in such cases, it is not as if the aggrieved person is without any remedy. Notwithstanding the reduction of the upset price without notice, if the judgment -debtor is able to establish that the property sold had not fetched a proper price, then he ran make an application to set aside the sale and succeed therein, if he can establish substantial injury arising out of the inadequacy of the price as a result of the material irregularity owing to the reduction of the upset price without notice to him. Even according to the learned Counsel for the petitioner, the reduction of the upset price without notice to the judgment -debtor would constitute a material irregularity but that it would justify the setting aside of the sale itself. Even if that be so, the question arises as to whether such an irregularity would be one which would fall under the provisions of Order 21, Rule 90, Civil Procedure Code or under Section 47, Civil Procedure Code. It is in this connection that the learned Counsel for the petitioner relied upon the decision in Gnanabaranam Pillai v. Rathinam Pillai : AIR 1972 Mad 364. Therein it has been pointed out that any irregularity or fraud in the settlement of proclamation which precedes its publication of conduct of the sale, is not affected by Order 21, Rule 90, Civil Procedure Code. This conclusion was based on the earlier decision in Ramalingam v. Sankara Iyer : AIR 1964 Mad 424. But these decisions viz., Gnanabaranam Pillai v. Rathinam Pillai : AIR 1972 Mad 364 and Ramalingam v. Sankara Iyer, A.I.R. 1964 Mad. 424, were considered by the Full Benching. P.V. Rajendran v. S.A. Sundararajan and Ors., (1980) 1 M.L.J. 198 : : (1980) 93 L.W. 47. In that case, one of the grounds on which the Court sale was impugned was the improper reduction of the upset price for lot I. Even so, it was held by the Full Bench that the defect related to matters covered by the sale proclamation and which in turn would be covered by Order 21, Rule 66 and Order 21, Rule 90, Civil Procedure Code. In so holding, the Full Bench stated that in. view of the decision of the Supreme Court in Dhirendranath Doraj and Sohal Chandra Shaw v. Sudhir Chandra Ghosh : [1964] 6 SCR 1001, the earlier decision of this Court in Ramalingam Pillai v. Sankara Iyer (died) and Ors. : AIR 1964 Mad 424 ; Nataraja v. Chandmull Amarchand : (1971) 1 MLJ 474 and Gnanabaranam Pillai v. Rathinam Pillai : AIR 1972 Mad 364 (relied on by the learned Counsel for the petitioner), in so far as they held that a defect or an irregularity in the sale proclamation would not fall under Order 21, Rule 90, Civil Procedure Code, as that irregularity precedes the stage of publication and the conduct of the sale, cannot be held to be good law. In this case, the omission to issue a notice to the judgment -debtor in the application for the reduction of the upset price relates to one of the steps taken in the matter of publishing and conducting the sale and has therefore to be placed on a par with an irregularity in the publication itself. In view of the pronouncement of the Full Bench referred to above, an irregularity of the type as in the present case would be clearly one which would fall within the scope of Order 21, Rule 90, Civil Procedure Code. In the present case, the court -auction sale was held on 3rd January, 1974, and the petition in E.A. No. 610 of 1974 purporting to be under Section 47, Civil Procedure Code, had been filed by the petitioner only on 24th April, 1974 (and not on 6th February, 1974, as has been stated by the Courts below). Obviously therefore, the application had not been presented within 30 days from the date of the sale and the application filed was clearly out of time. The Courts below were quite justified in declining to entertain the application filed by the petitioner. Consequently, the civil revision petition fails and is dismissed with costs.