T DURAISWAMI Vs. LAKSHMI

JUDGEMENT

(1.) THIS appeal is directed against order in E. A. No. 870 of 1991 in E. P. A. No. 6 of 1991 in O. S. No. 4 of 1987 on the file of Subordinate Judge of Erode, in which the learned Subordinate Judge had dismissed the petition filed by the appellant for setting aside the court auction sale.

(2.) THE petitioners /the appellants case is briefly as follows: He is the judgment-debtor. Item No. 1 in the execution petition was sold on 24-10-1991 for Rs. 1 ,05,000. As per O. 21, Rule 66 (2 ) (e), Civil Procedure Code, the execution court need not fix the upset price of the property to be sold. It is an obligation imposed upon the court to give the value of the decree holder and judgment-debtor. While so, the amin , a court officer was deputed to inspect the property to be sold and give his valuation and in this case the Amin had fixed the value at Rs. 3 lakhs. THE sale proclamation effected by the court contained the value of the judgment-debtor, the value of the Amin and the value of the decree-holder viz. Rs. 8 lakhs , rs. 3 lakhs and Rs. 1 lakh respectively. On the date of auction viz. , 24-10-1991 , the Court officer made an attempt to sell the property at Rs. 8 lakhs. THEre was nobody to bid. THErefore, the Court officer recorded it. THE Court officer ought to have intimated the court that there was no bid and ought to have obtained further direction. On that, the Court shall send notice to the judgment-debtor. THEn only, the Court officer ought to have proceeded to the next value viz. , Rs. 3 lakhs. For this value also there was nobody to bid and the property was not sold. Here also, the Court officer has not intimated the court and hence the next value viz. , the value given by the decree-holder was taken as the upset price. THE decree holder had availed the opportunity and made his friends to take part in the proceedings and the property was auctioned for Rs. 1 ,05,000. All the three stages came into play without the knowledge of the petitioner. It is in gross violation of the rules and regulations. It is fraud committed by the court. THE proclamation was defective, since it does not speak at what rate the property is going to be sold. Hence the sale held on 24-10-1991 is to be set aside, as it is vitiated by material irregularity. Otherwise the petitioner would be put to irreparable loss and hardship.

(3.) THE objection put forth now by Mr. C. Chinnaswami , the learned Senior Counsel, is that the upset price should have been reduced progressively and not from Rs. 8 lakhs to Rs. 3 lakhs and then from Rs. 3 lakhs to rs. 1 lakh. Even according to the petitioner, the property could not be sold for Rs. 8 lakhs and there were no bidders for that amount. Neither was there any bidder for the next value of Rs. 3 lakhs. While so, the court officer had taken the next value, the value given by the decree-holder. THEre is absolutely no evidence to show that this value given by the decree - holderwas totally inadequate and does not reflect the market value of the property. Furthermore, it is a notorious fact that a court auction sale would not fetch the market value of the property in such an auction. Thus, there is nothing to show that there was any material irregularity and there was any substantial injury flowing from such material irregularity. In the absence of such evidence, the procedure adopted by the Court officer by taking Rs. 1 lakh as the bidding price when he was not able to get any bidders for Rs. 3 lakhs would not render the sale invalid.