N NATARAJA NADAR Vs. NOOR AHMED

JUDGEMENT

(1.) This Letter Patent Appeal arises out of execution proceedings. The first respondent-plaintiff filed the suit O.S. 185 of 1971 on the file of the Subordinate Judge, Coimbatore, for the recovery of Rs. 16,000/- and obtained a decree for a sum of Rs. 24,195.14 including interest After giving credit to a sum of Rs. 16,711.25 paid by the judgment debtor, execution petition was filed on 11-8-1977 for execution of the decree by sale for recovery of a sum of Rs. 16,322.71. The decree-holder prayed for the sale of the cinema theatre, known as 'soundaram theatres' situate in S. No. 112/1B Perur Chettipalyam village, Coimbatore Dt. with all superstructures, doors, windows, and amenities, projector, rectifyer, transformer and amplifiers complete in running condition. The sale proclamation was settled giving the Amin's valuation at Rs. 96,500; decreeholder's valuation at Rs. 10,000, and the judgment-debtor's at Rs. 7,00,000, subject to encumbrance of Rs. 50,000, due under a mortgage. The upset price was fixed at Rs. 50,000, subject to the encumbrance. By an order dated 6-1-1978, the learned Subordinate Judge directed proclamation and sale of the property to be held on 8-3-1978. C.P. 556 of 1977 was adjourned to 13-3-1978. Proclamation was settled and on 1-3-1978, batta was paid by the decree-holder for issue of the sale warrant to the plaintiff to hold the auction sale on 8-3-1978. The sale warrant was given to the bailiff on 6-3-1978 with a direction to hold the sale on 8-3-1978 and return the warrant by 13-3-1978. It appears that on 8-3-1978 there was N.G.O. strike and therefore, though there were a few bidders, no sale was held and the Bailiff returned the warrant on 13-3-1978, without effecting the sale on 8-3-1978. It is stated that the judgment-debtor filed an application on 13-3-1978 to fix a fresh date for sale giving a long date; but that petition was rejected. Thereafter, the learned Subordinate Judge suo motu 'adjourned the sale' to 15-3-1978, and adjourned the E.P. to 23-3-1978. On 15-3-1978, the property was sold and the Second respondent was the successful bideer, his bid being Rs.1,50,000 subject to the mortgage. On 22-6-1978, when the E.P. was called, the sale was confirmed. In the meantime on 16-41978, the appellant herein (judgment-debtor) filed E.A. 702 of 1979 in E.P. 556 of 1977 in O.S. 185 of 1971, praying for setting aside the sale held on 15-3-1978, on various grounds mentioned therein and this petition was filed under O.21, R.90, C.P.C. Even earlier than that, on 27-3-1978, he filed I.A. 700 of 1978 praying for the same relief; but that petition was filed under S.47 read with S.151, C.P.C. Both those petitions were heard together and by an order dated 3-3-1982, the petitions were dismissed. As against the order in E.A. 702 of 1979, C.M.A. 53 of 1982 was filed on the file of the District Court, Coimbatore, and as against the order in I.A. 700 of 1978. C.R.P. 113 of 1982 was filed in this Court. Since the C.M.A. and the C.R.P. related to the same subject-matter C.M.A. 53 of 1982 on the file of the District Court, Coimbatore, was withdrawn, and was heard with C.R.P. 113 of 1982. C.M.A. 53 of 1982 was renumbered as C.M.A. 715 of 1983 on the file of this Court Both the appeal and the revision were dismissed. It is stated that as against the order in revision, an appeal in the Supreme Court is pending. As against the order in C.M.A. the present L.P. Appeal is filed.

(2.) The main contention of the learned counsel for the appellant is that the Court had no jurisdiction to adjourn the sale' and hold it on 15-3-1978, and that the Court could have only directed a fresh proclamation and fresh re-issue of warrant after fixing a fresh date for sale. That not having been done, the sale itself was void and illegal. The facts relating to this appeal are, as stated earlier, that batta was paid on 1-3-1978 for issue of same warrant to the Bailiff and the sale warrant was actually issued to the Bailiff on 6-3-1978 with a direction to hold the sale on 8-3-1978 and return the warrant by 13-3-1978. According to the learned counsel for the appellant, when the sale was not completed on 8-3-1978 and the Bailiff himself having not adjourned the sale on that date, the warrant has been exhausted and the Bailiff has become functus officio except to return the warrant unexecuted to the Court and on such return of the warrant, the Court, will have to reproclaim and issue a fresh date for sale and with reference to that date, a warrant to the Bailiff will have to be issued to hold the sale on that date and for issue of such warrant, fresh batta also will have to be paid. The rule relating to adjournment of sales in execution is R.69 of O.21, C.P.C. The rule reads as follows -

(3.) It was, however, contended by the learned counsel for the auction purchaser, that, at best, this could be an irregularity and that unless the judgment-debtor proves substantial injury, the sale itself could not be set aside. In this connection, he contended that at no time the judgment-debtor asserted or proved that the sale was for a low price or that by reason of that he had suffered. He was at pains to show us that neither in the affidavit filed in support of the application for setting aside the sale nor in any other record there is any direct averment to the effect that the property was sold for a low price and therefore, there was substantial injury caused to the judgment-debtor. For one thing, as we have held earlier the adjournment of the sale on 13-3-1978 was not a mere irregularity; but it is an illegality in the sense that the Court had no jurisdiction to adjourn the sale and the Bailiff also had become functus officio after the sale warrant executed by him on 8-3-1978 had become exhausted. However, for the purpose of completeness we may observe we could not entirely agree with the learned counsel for the auction-purchaser. Though the affidavits filed in support of the application for setting aside the sale and the one filed under Sec.47, C.P.C. did not say that the sale price realised was lower than the market value, there is an allegation that even on 15-3-1978 there was a doubt about the real holding of the sale in view of the indefiniteness of the N.G.O. strike, that the persons really interested in the purchase of the property and who could purchase for proper price could not come and take part in the auction and thereby the sale was inflected. In Tamil, this is what we see relating to the allegation - Which can he translated as follows :- "Since it was stated that the auction would not take place till the last, persons who could purchase for proper price were unable to participate in the auction." This allegation was understood by the Subordinate Judge that the auction was held for a low price, as seen from the first paragraph of the order. But, however, he rejected that contention on the ground that no witnesses have been examined and no documents have been produced to show that the price fixed was low. On this question, the learned counsel for the appellant strenuously contended that on 2-3-1982, when the applications were taken up for hearing, the counsel appearing for the judgment-debtor filed three memos praying for adjournment- (1) on the ground that he wants to cite the authority in AIR 1961 All 198 which was not readily available; (2) for examining witnesses; and (3) for filing documents. There is no reference to the three memos in the order of the Subordinate Judge. When the matter came up for disposal in appeal, C.M.P. 2938 of 1986 was filed in this Court for taking additional evidence relating to these three memos and he also filed an affidavit in support of the same by the counsel who appeared in the execution proceedings for the judgment-debtor. That petition was dismissed on the ground that though the appellant had enough opportunity, he did not file the same earlier and that the memos were not found in the bundle. Be that as it may; but what is relevant is that he has been contending that he did not have the opportunity to let in evidence to show that the property was sold for a low price because of the irregularity in the conduct of the sale by not giving due publicity and inviting persons who would afford proper price for the property. It is not possible to state that the judgment-debtor had not suffered any substantial loss by reason of this irregularity, Actually, as already stated, the execution petition itself was filed for recovery of Rs, 16,322.71, but the property sought to be sold is a cinema theatre which even according to the bailiff was of Rs. one lakh and more and according to the judgment-debtor as seen from the proclamation of sale of Rs. seven lakhs. There were Projectors, Rectifier, Transformer and Amplifier and in some places it is also mentioned about, furniture. Whether these articles separately could not have been sold to realise the small amount of Rs. 16,000 is also to be taken into consideration in considering whether the judgment-debtor could have suffered substantial injury in this case. We are satisfied that even if the holding of the sale on 15-3-1978 is merely an irregularity the injury caused was so substantial that it calls for interference by setting aside the sale. As already stated, the consideration of this question does not in any way affect our earlier view that fixing the date 15-3-1978 in the circumstances was without jurisdiction. In the result, the appeal is allowed and the orders of the Courts below are set aside and the sale is also set aside. However, it is made clear that E.P. 556 of 1977 in O.S. 185 of 1971 on the file of the Subordinate Judge, Coimbatore, shall be deemed to be still pending for the purpose of further execution of the decree if it is necessary. There will be no order as to costs. Appeal allowed.