VAIDYALINGAM PILLAI Vs. M.K. CHIDAMBARAM PILLAI

JUDGEMENT

(1.) This is an appeal by the defendant in O.S. 89 of 1957 against the order of the Subordinate Judge, Tiruchirapalli. dismissing his application, E.A. 565 of 1961, filed under O. 21 R. 90and Ss. 47and 151of the C. P. Code, for setting aside a sale dated 2nd November 1960 in favour of the respondent (plaintiff decree -holder) in O.S. 89 of 1957. There are three items of property sold in the Court auction on 2nd November 1960. Items 1 and 2 are landed property and were purchased by the defendant in 1945, for a sum of Rs. 6000. Item 3 is a house in the village of Manachanallur. These three items were mortgaged in favour of the plaintiff for Rs. 10,000. The mortgagee filed a suit under the mortgage and obtained a preliminary decree on 19th November 1957. The final decree was passed on 17th March 1958. He filed an execution petition E.P. 344 of 1958 and the sale was posted on 23rd December 1959. The defendant filed E.A. 884 of 1959 and prayed for three months' time for payment of the decree amount, waiving fresh proclamation. The properly was again brought to sale on 9th March 1960 but was not sold as there were no bidders. The decree holder filed E.A. 189 of 1960 for reduction of the upset price. But the defendant appeared and took time. The petition was posted to 19th April 1960, but no counter was filed by the defendant. The upset price was reduced. Then again the decree holder filed E.A. 218 of 1960 for leave to bid and set off. Notice was given but the petition was not opposed by the defendant. The property was posted for sale on 27th July 1960. But as there were no bidders, the sale was not effected. Again the decree -holder applied for the reduction of the upset price and served notice on the defendant. This petition was not also opposed and the upset price was reduced. The sale was ultimately held on 2nd November 1960 when the property (items 1 to 3) was purchased by the decree -holder himself for Rs. 3001, Rs. 3001 and Rs. 2501 respectively.

(2.) E.A. 545 of 1961 out of which this appeal arises was filed by the defendant for setting aside the sale held on 2nd November 1960. The petitioner alleged that there was fraud and material irregularity in publishing and conducting the sale. He listed seven grounds of material irregularity. It was contended that there was discrepancy between the value of the property stated to the proclamation and the real value. It is also alleged that the price for which the property was sold was grossly inadequate. It is also contended that the omission in the sale proclamation to mention the correct revenue or rent payable to the Government resulted in low price. It was further contended that the property was worth very much more but was sold for a grossly inadequate price. According to the petitioner, in the landed property sold, there were six acres of nanja under cultivation irrigated by two wells. According to him, these six acres were worth Rs. 12,000 where paddy, cholam and kumbu crops were raised. He further stated that he spent about Rs. 25,000 for constructing a house and that the property was worth about Rs. 40,000. He valued the nanja lands at Rs. 25,000. He was paying the house tax in the village on a valuation of Rs. 5000. The petitioner also examined the President of the Panchayat who deposed that, in the Panchayat books, the house was valued at Rs. 5000. On behalf of the decree -holder, R.W. 1, the karnam of Therku Sirupathur village was examined. In cross -examination, he admitted that in a portion of the property paddy was raised and it was irrigated by water from a kuttai.

(3.) On an inspection on 27th July 1959 the Amin fixed the value of the three items at Rs. 7000, Rs. 6000 and Rs. 5000 respectively, that is, for a total value of Rs. 18,000. The value was reduced to Rs. 5100, Rs. 4600 and Rs. 4000 on 23rd December, 1959. On 8th April, 1960 the value was reduced to Rs. 4,000, Rs. 3,000 and Rs. 2,500 respectively, totalling Rs. 9,500. On 27th July, 1960, the value was reduced to Rs. 3825, Rs. 3,450 and Rs. 3,000 totalling Rs. 10275. Ultimately on 2nd November, 1960 the upset price was reduced to Rs. 3,000, Rs. 3,000 and Rs. 2,500 totalling Rs. 8,500. The property was purchased by the decree -holder for Rs. 8,503.