GANAPATHI PILLAI Vs. MALIPERUMAL CHETTIAR

JUDGEMENT

(1.) These are appeals against the order of the lower Court setting aside a Court sale in execution. The lower Court in its order points out several things in connection with the sale which it calls suspicious, and concludes that the property has been sold for an unconscionably low price, and on those two grounds it has set aside the sale. Now, obviously this order does not in any way comply with the requirements of Order XXI, Rule 90, Schedule 1, O.P.C. under which the first thing to be proved is that there was a material irregularity or fraud in publishing or conducting the sale, and next that the irregularity or fraud so proved caused substantial injury to the parties who seek to set aside the sale. We are unable to find any irregularity or fraud and certainly the lower Court does not record that it found any.

(2.) The learned Subordinate Judge mentions two points: first, that at the time of the sale, as there were no bidders, the decree-holder got the upset price reduced from Rs. 11,000 to Rs. 2,500 on an affidavit by his Karyasthan, which the learned Judge calls suspicious. Why the affidavit by the Karyas-than should be suspicious, we do not know. The second point is that when the bidding was resumed, the Karyasthan bid for Rs. 70 more than the upset price of Rs. 2,500 and : the learned Judge thought that he added Rs. 70 to the upset price because his conscience was pricking him. This seems to us rather a pointless remark. The learned Judge mentions another circumstance, that his predecessor was concluding sales in open Court while that was not his own practice, and, as this was the first sale conducted in that Court after he took charge, he thinks some bidders may have been waiting until the sale was concluded in open Court before making their bids. There is absolutely no evidence to justify any such assumption; nor, even if there was any, would that circumstance amount to an irregularity or fraud in the conduct of the sale.

(3.) The learned Judge's conclusion that the price was unconscionably low is based, so far as appears from his order, on nothing more than a valuation by an Amiti some five years earlier in March 1917, which valuation was attested by the auction-purchaser. He considers that this attestation meant that the auction-purchaser gave his "sanction" to the estimate. It seems to us an inference wholly unjustified. The attestation was presumably in token of the Amin having come and made his estimate. The whole foundation of the suspicion which the Subordinate Judge entertains regarding the affidavit by the auction-purchaser, therefore, falls to the ground. The order seems to us wholly indefensible on the grounds urged by the lower Court.