K S NAGENDRA IYER Vs. M VARADARAJA PILLAI

JUDGEMENT

(1.) THIS appeal, under the letters Patent, is directed against the order of venkatadri J. in C. M. A. Nos. 109 and 276 of 1960. One Varadaraja Pillai and his brother Periaswami Pillai mortgaged four items of properties, and the properties included as item 2 a cinema theatre in Namakkal, and item 3 a house in Salem. A preliminary decree was passed and then a final decree. On 16-3-1945, the decree-holders brought the mortgaged properties to sale, and the sale was advertised to be held by the court on 28-8-1952. After adjournments from day to day the sale was concluded on 4-9-1952, when the cinema theatre at Namakkal was sold for rs. 20,000 and the house at Salem was sold for Rs. 8200. Varadaraja Pillai, one of the mortgagors, filed a petition in the executing court, i. e. , Sub Court, Salem, for setting aside the aforesaid sale on the ground that the two items of properties sold were grossly under-valued, and consequently substantial injury had been caused, by the execution sale, to the judgement debtors. There was one more allegation that the order of the lots as notified in the sale proclamation, was altered by the executing court and it was urged that this also was an irregularity vitiating the sale. We are, however, not upholding this ground, as there is no evidence to show that the change in the order of the lots prejudicial affected the judgment debtor. That is an essential pre-requisite to enable a sale following a different order of lots, to be set aside in appeal--vide Meenakshi Sundaram Pillai v. Chokkalingam Pathari, 56 mad LJ 624: (AIR 1929 Mad 506 ). There were some other allegations including want of due publicity, as factors contributing to the irregularity of the sale, but only the first two points mentioned above have been pressed for consideration before us.

(2.) THE executing court dismissed the petition. But Venkatadri J. in appeal, held that there was gross under-valuation of the properties that the price realised was far below the market price and that thereby a substantial injury was caused to the judgment debtors. The sale was set aside. From this decision, this appeal under the Letters Patent, is filed by respondents 9 and 10 in the application, who were the auction purchasers.

(3.) WE will put down briefly the proved facts in the case, before applying the law on the subject to them. the execution petition was filed in 1947, and the decree-holders had estimated the upset price for item 2, the cinema theatre in Namakkal, at Rs. 7500 and for item 3, the house at Salem, at Rs 7500. at the auction sale held on 28-8-1952, bids were offered and the price for item 2 was raised to Rs. 16000 and that of item 3 was raised to Rs. 8200, by the 9th and 10th respondents respectively. But the learned Subordinate Judge was not prepared to knock down the sale, as in his opinion the bids appeared to be low. He ordered the sale proceedings to continue from day to day, and there is a note in the bid list in the concerned execution petition that no bidders were present on the succeeding days until 4-9-1952. On 4-9-1952, a few more bids were offered, and the court finally knocked down item 2 in favour of the 9th respondent for Rs. 20,000 and item 3 in favour of the 10th respondent for Rs. 8,200.