V RAJAGOPAL NAIDU Vs. MUTHULAKSHMI AMMAL

JUDGEMENT

(1.) THE judgment-debtor-petitioner, aggrieved by the orders of the lower court who refused to set aside a sale of the property in execution of a money decree, canvasses the legality of the same, as petitioner in this court. The petitioner's case is that the property has been valued by him even at the stage when it was attached before judgment at Rs. 6500. After the suit ended in a compromise decree, the attachment having been raised, that first respondent-decree-holder reattached the property in execution. The property consists of two items (1)garden land of an extent of 74 cents and (2) cultivable land of an extent of 58 cents with a well in it. In E. P. 632 of 1962, the property was valued by the village munsif itemwar at Rs. 800 and Rs. 1000 each. Incidentally the second item of the property was subject to an encumbrance in favour of the Co-operative Society from whom the judgment-debtor secured a loan to widen the well. After the property was attached in execution, the petitioner's case is that no notice was validly served on him under Order 21 Rule 66 C. P. C. when the sale was directed. Even in the proclamation of sale Ex. C. 2 only the decree-holder's valuation and the court's valuation have been mentioned and his valuation and the encumbrance were not included therein. It appears after knowing the sale date, he sought for an adjournment of the sale and was asked to deposit some money towards the decree. The sale was finally held on 3-4-1963 and was knocked out in favour of the husband of the decree-holder for Rs. 501 in respect of the first item and for rs. 1001 in respect of the second item. The petitioner contends that as (1) there was no notice under Order 21 Rule 66 C. P. C. , (2) there was no proper tom tom of such sale, (3) there was no insertion in Ex. C. 2 of his valuation and (4) the property was knocked down for a ridiculously low price, the sale suffers from material irregularities and the petitioner is adversely affected by such a sale.

(2.) AS regards the first objection that no notice under Order 21 Rule 66 C. P. C. was served on the petitioner, it has to be noted that the service in the instant case was effected by affixture consequent upon the refusal by the judgment-debtor. Both the courts below found, as a matter of fact, that such service was sufficient service. It must however be noted that due to the alleged refusal and consequential affixture, the courts below imputed the judgment-debtor with constructive notice under Order 21 Rule 66 and this conclusion was arrived at on a detailed examination of the oral evidence in the case. The main contention of the petitioner is that the attesting witnesses are not those ordinarily residing in the village in which the property is situate. Though at first sight this argument appears to be well with force, but in revision the matter cannot be successfully canvassed by the petitioner, because the factum of service is clearly a fact found concurrently by the courts below. The conspicuous event in this case is that if the judgment- debtor did not have such effective notice of sale it was well within his rights to apply for setting aside the ex parte order which accepted such service as good service. The judgment-debtor, however, did not file any such application to set aside the ex parte order. As regards the other contention that no proper tom tom can be said to have been effected by the decree-holder at or near the place of auction, it does not appear to me that the reasons given by the petitioner in this court are in any way convincing to disturb the concurrent findings of fact of both the courts below.

(3.) BUT the contention of the judgment-debtor that the sale proclamation was defective in that the valuation of the judgment-debtor was not incorporated therein and such an inchoate and irregular sale proclamation cannot be the foundation of a legal and valid court or public sale, has considerable force. The trial court does not appear to have adverted to this material circumstance. The lower appellate court, however, held that there is nothing on record to show that the judgment-debtor gave any value for being mentioned in the sale proclamation and therefore it held that the sale is not vitiated and not liable to be set aside. I shall presently advert to the other main contention of the petitioner that by reason of the irregular proclamation resulting in an illegal sale, he has been considerably prejudiced in that the real market value of the property was not incorporated in the document which has to be circulated to the public to enable them to come and bid at the sale. What is the impact of Order 21, Rule 66 (2) (e) over a sale proclamation which is admittedly defective, in that there is a lacuna therein which relates to the absence of valuation of the judgment-debtor?