D KONDAIAH Vs. G RAMA SUBBAIAH

JUDGEMENT

(1.) This Revision is filed against the order in C.M.A.No.30/94 and E.A.No,306/93 in E.P.No.64/90 in OS No.468/86. The Judgment-debtor is the petitioner. There was a money decree, for Rs.5,71,000/- and there are other mortgages. The second respondent obtained money decree. In execution of the money decree the property was brought to sale. Originally the property was auctioned for R.80,000/- on 16-9-1993 and one G.Venkatarami Reddy s/o G. Adireddy was the highest bidder. However, he did not deposit the amount required under the Rules and therefore, on 26-10-1993 second auction was conducted and the property was sold for Rs.28,000/-. The judgment- debtor filed a petition under Order 21 Rule 90, CPC complaining that there is non-compliance with Order 21 Rule67 sub-rule (2), CPC and that the price fetched was inadequate and therefore, he suffered substantial injury and hence the sale is liable to be set aside. The learned Prl. Dist. Munsif, Nandyal held that the property is subject to mortgage amount which will be around Rs.5,71,000/- and the highest bidder offered bid for Rs.28,000/-. In all the property was sold approximately for R.6,00,000/-. He also held that the petitioner-judgment-debtor has knowledge of Court auction sale as on 16-9-1993. When the sale could not be completed because of technical reasons he was present in the Court and he was aware of next date of auction in the Court. He also held that the contention of the petitioner that torn torn was not effected and the proclamation was not affixed to the door of the house are all of no avail as all formalities are followed to that effect and there are records. He also negatived the contention of the petitioner that the sale proclamation is published in "Kurnool Nedu" which is not a popular paper and has no wide circulation and observed that Kurnool Nedu" is a daily from Kumool which is at a distance of 74 kms from Nandyal and that the District Judge, Kurnool has recognised "Kurnool Nedu" as one of the Newspapers wherein the Court publications can be ordered and every day number of Court publications relating to the sale of properties, summons etc., are being published. Holding as above, the learned Munsif rejected the petition under Order 21 Rule 90 CPC. On appeal the learned Sub-Judge, Nandyal agreed with the view of the learned Dist.Munsif. He observed that the publication was made in the recognised Newspaper "Kurnool Nedu" and the sale was held as per the procedure in the open Court and that therefore, there is no irregularity or fraud in conducting the sale. He also observed that according to the evidence of P.Ws.l to 4 the petition schedule property is worth more than Rs.7,00,000/- and that the property amount fetched out of sale is nearly touched Rs.6,00,000/-. Therefore, the sale amount is not inadequate. Aggrieved by the same the present Revision is filed.

(2.) The main argument of the learned Counsel for the petitioner is that under Order 21 Rule 67 sub-rule (2), CPC it is mandatory for the Court to publish the proclamation of sale in local Newspaper in addition to the publication in accordance with Order 21 Rule54 sub-rule (2). "Kurnool Nedu" is not circulated within Nandyal taluk and therefore, there is violation of mandatory provision of Order 21 Rule 67, CPC. Since there is violation of mandatory provision under Order 21 Rule 67, the sale is liable to be set aside. In support of his contention he relied on Desk Bandu Gupta vs. N.L. Anand & Rajender Singh and Lal Chand vs. VIII Addl. District Judge. The second submission of the learned Counsel for the petitioner relying on Ramasesha Iyer vs. C.V. Ramanujachariar is since the properties have been grossly undervalued and sold for a very low price the Court has to draw an inference that the inadequacy of the price obtained for the property at the sale was the result of the under-valuation and resulted in substantial injury to the petitioner. He also brought to my notice the judgment in Seethammal vs. Senthil Finance. While the Counsel for the respondent submitted that under Order 21 Rule 67 there is substantial compliance in publishing the sale proclamation and the price fetched is not inadequate. He submitted that the property is subject to mortgage of Rs.5,71,000/- and it is sold for Rs.28,000/-. In all, the property was sold for Rs. six lakhs. He brought to my notice the observation of the Supreme Court in Kayjay Industries vs. Asnew Drums as to how the validity of the Court sales have to be judged.

(3.) The question, therefore, is whether the publication of the, date of auction in a local Newspaper which according to the petitioner has no wide publication vitiates the sale resulting in substantial injury to the petitioner under Order 21 Rule 90, CPC and, therefore, the sale has to be set aside.