SIVASANGU Vs. CHINNAIAH

JUDGEMENT

(1.) THIS appeal has been preferred against the order of the learned District Judge of Tiruchirapalli in C.M.A No. 14 of 1973, confirming the order passed by the learned Subordinate Judge of Tiruchirapalli dismissing a petition filed under Order 21, Rule 90 and Section 47 of the Civil Procedure Code, by the appellant for setting aside a Court -sale.

(2.) THE respondent -decree -holder obtained a mortgage decree against the appellant -judgment -debtor and brought the mortgaged properties to sale and subsequently on 21st April, 1971 he purchased the properties in Court -auction for a sum of Rs. 7,000 after obtaining permission from the Court to bid in the Court -auction. The judgment -debtor assailed the sale on the following grounds; (1) the decree -holder managed to see that due publication of the sale proclamation was not made and as a result thereof the prospective purchasers did not get sufficient information and properties worth Rs. 20,000 had been sold for a low amount of Rs. 7,000; (2) no notice was given to him, the judgment -debtor in regard to the petition filed by the decree -holder for permission to bid in the auction; and (3) the executing Court erred in having allowed the decree -holder to bid in the auction even when the properties were brought for sale the second time. All these contentions were negatived by the learned Subordinate Judge of Tiruchirapalli.

(3.) THE next ground urged was that no notice was given to the judgment -debtor in regard to the application filed by the decree -holder to reduce the upset price and seeking permission to bid at the auction. Order 21, Rule 72, Civil Procedure Code, does cot provide for any notice to be given to the judgment -debtor of such a petition. Nevertheless, since in exercising the discretion the Court should consider all the circumstances and exercise the discretion not arbitrarily but on judicial lines it is desirable for the Court to give notice to the judgment -debtor in regard to such petitions so that the Court may be in a position to consider all the circumstances of the matter. In Venkitammal and Anr. v. Janaki Ammal : (1971)1MLJ366 it has been held by Ramanujam, J., that the Court, while considering the grant of permission under Order 21, Rule 72 should take into account certain objective matters and the discretion should be exercised on judicial lines and not arbitrarily and though Order 21, Rule 72 does not provide for any notice to the judgment -debtor or any reasoned order being given by the Court, it is desirable for the Court to give notice to the judgment -debtor to show cause as to why the permission should not be granted and to pass a reasoned order if objections are raised, and though the statute does not provide for any notice, it is well established that the Court exercising judicial functions, should normally give notice to the party who is likely to be affected by that order and cannot pass an order behind the back of the party, offending the principles of natural justice. But then, merely because such a notice was not given it cannot be held that the sale in is vitiated. Even if a decree -holder bids and purchase a property in Court -auction with out obtaining such permission, such purchase will not be void or a nullity but is only to be avoided on the application of the judgment -debtor.