PEDDA NARISI REDDI Vs. VENKAYYA

JUDGEMENT

(1.) This appeal is preferred against the Judgment of the learned second Additional District Judge. Guntur reversing the order and decree of the learned District Munsif, Sattenapalli, and setting aside the court auction sale and confirmation of the sale in execution of a decree. The relevant facts are as follows:The respondents 1 and 2 borrowed a sum of Rs. 4000/by mortgaging the suit house in favour of Aravapally Venkata Seshadri. The mortgagee filed a suit OS No 437/1957 on the file of the District Munsiff's Court, Sattenapalli, on the foot of mortgage and obtained a preliminary decree on 12-2-1958 and final decree on 4-9-1958. The respondents 3 to 6 are legal representatives of the decree-holder. In E.P. 1342/1958 the hypotheca was brought to sale. The sale proclamation was drawn up on 21-2-1959. The upset price was fixed at Rs 3500/The sale was to be held on 8-6-1959. At that state the respondents I and 2 (Judgment-debtor) filed an application E.A. No 907/1959 (Ex.B-1) making party payment of Rs. 575/ and waiving fresh publication of the proclamation and praying for adjournment of the sale and for four months tine for payment of the balance.Accordingly the sale was adjourned to 29-6-59 on which date the judgment-debtors filed another application E.A.No.1016/ 1959 making part payment of Rs. 600/and waiving fresh publication and requesting three months time for payment of the balance. The sale was adjourned to 13-7-1959 on which date another application E.A. No 1124/ 1959 was filed making part payment of Rs 385/and waiving fresh publication of the proclamation and requesting for the adjournment of the sale. The sale was then adjourned to 23-7-1959. On that day while the auction sale was proceeding, the judgment-debtors filed an application E.A. No. 1185/1959, making part payment ef Rs. 200/and praying for 15 days time for payment of the balance and for adjournment of the sale and waiving fresh publication of proclamation. The sale was ordered to continue and on 25-7-1959 the sale was held and the 3rd respondent the son of the decree holder became the highest bidder for Rs. 4000/Subsequently the sale was confirmed.

(2.) The appellant herein purchased the suit house under the sale deed Ex B-12 dt 12-4-61, from the 3rd respondent. The Judgment - debtors filed an application E.A. No. 19/1961, under section47 and Order 21 Rule 90 C.P.C. for setting aside the sale on the ground among others, that the judgment - debtors had no notice of the settlement of the proclamation that there was violation of the mandatory provisions of Order 21 Rule 66 (2)(e) of the Code of Civil Procedure in not mentioning the valuation of the judgment - debtors in the sale proclamation and that as a result of collusion between the 2nd respondent and the bidders the sale was knocked down for a very low price. This application was opposed by the decree holders and the purchasers. The trial court, negatived all the contentions and dismissed the petition. On appeal the learned Additional District Judge, allowed the appeal and set aside the sale and its confirmation. Before the learned District Judge, mainly three points were urged that there was no notice of the settlement of the proclamation; that there was violation of the mandatory provisions of order 21 Rule 66 (2) (e) C.P.C; that the valuation of the property as given in the proclamation was low and that the price fetched at the court auction sale, was grossly inadequate. The learned Judge upheld the aforesaid contentions. In this appeal, Sri P.Sitarama Raju, learned counsel for the appellantreiterated the same contentions. It is not disputed that the sale proclamation did not contain the Judgment - debtor's valuation. Further, the finding of the lower court, that the upset price given in the proclamation was low, that the value of the suit house could be reasonably taken to be between Rs. 8000/and Rs. 10,000/and that the price of Rs. 4000/ fetched at the court auction sale was grossly inadequate, is not disputed. Only two contentions were urged by the learned counsel for the appellant. The first contention is that the Judgment-debtors had notice of the sale proclamation but they did not attend the settlement of the sale proclamation and avail the opportunity of giving the valuation of the suit property, the second contention is that their conduct in not attending the settlement of the sale proclamation and in seeking adjournments of the sale by making part payments from time to time and waiving fresh publication would amount to waiver of any defect in the sale proclamation and that therefore the nonmention of the Judgmentdebtors' valuation as required by Order 21 Rule 66 (2) (e) C.P.C. would not vitiate the sale. When the matter was first heard by me on 2-8-1976 it wag found that the notice Ex. A8 issued to the Judgementdebtors was not found in the record. As this document has a material bearing on the question as to whether the appellant had notice of the sale proclamation, the said document was called for from the lower court and the appeal was directed to be posted after receipt of the document. The document had since been received and it is found that the said notice merely called upon the judgment debton, to be present on 30-12-1958 to offer their objections for sale of the property. The relevant portions of order 21 Rule 66 (1) (2) and clause (e) C.P.C. reads as follows:

(3.) This contention cannot be accepted because what can be waived and what has been actually waived by the judgment-debtors, is only fresh publication of the proclamation. Order 2 Rule 69(2) CPC provides that where a sale is adjourned under sub-Rule (1) for a longer period than thirty days, there shall be a fresh publication of the proclamation in the manner prescribed by Rule 67, unless the judgment-debtor consents to waive it. The three steps required before a property can be brought to sale are:(1) drawing up of proclamation of sale after notice to the decree-holder and the Judgment-debtor giving the time and the place of sale (2) mentioning the particulars mentioned in clauses (a) to (f) of Sub-rule (2) of Rule 66 of Order 21 CPC and (3) publication of the proclamation of the sale as required by order 21 Rule 67 CPC. Under Order 21 Rule 69 (2.) CPC fresh publication of the proclamation can be waived by the Judgment-debtor but it does not provide for waiver of the notice of the settlement of proclamation or specifying of the particulars as required by Order 21 Rule 66 (2) CPC. The provisions of Order 21 Rule 66 (1) and (2) CPC have been held to be mandatory and want of compliance with the said provisions would render the sale illegal. In the instant case, what the Judgment-debtors have waived was only fresh publication of the proclamation of sale and not the notice of the settlement of the proclamation and the specification of the particulars as mentioned in order 21 Rule 66 (2) (e) CPC. There being non-compliance with the mandatory provisions of Order 21 Rule 66(2) CPC. and clause (e) thereof, the suction sale held on 25-7-1959 and its subsequent confirmation are illeagal and are liable to be set side. Sri Sitarama Raju, relied upon the decision of the Privy Council in Shyam Sunder Vs. Kaluram (1). In that case, the property sought to be sold was not sufficiently described. The Judgment-debtor did not raise any objection with regard to the insufficient description of the property sold though they had notice of the same. On those facts it was held that the defect in the description of the property sold was apparent on the face of the sale proclamation and the Judgment-debtors did not raise any objection to the same and therefore it was held that the judgment-s debtors must be deemed to have waived the objection to the defective deseiption of the property.