M L M RAMANATHAM CHETTIAR Vs. RAMANATHAN CHETTIAR

JUDGEMENT

(1.) This is a series of connected appeals the main point in which is the correctness of the lower Court's cancellation of the execution sale held in execution of a mortgage-decree which the appellant in C.M.A. No. 487 of 1925 obtained by assignment. The mortgage was over six villages of the Sivaganga zemindari, the mortgagors being the daughters of the late zemindar At the Court sale, the mortgagee-decree-holder, who is the appellant in C.M.A. No. 487 of 1925, bought the right, title and interest of the mortgagors in four out of the six villages and the appellant in C.M.A. No. 566 of 1925, bought the same in two out of the six villages. The contesting respondents to these two appeals are the mortgagors and certain puisne mortgagees who are defendants Nos. 15 to 17. These claim that the sale was vitiated by illegalities and irregularities which occasioned to them substantial in jury on account of the low price fetched for the property at the sale. The lower Court hap, on their petition E.A. No. 210 of 1924, to set aside the sale upheld their contention and set aside the sale, and the two auction-purchasers appeal. These appeals are C.M. As. Nos. 487 of 1925 and 566 of 1925, which we shall first take up.

(2.) It will be convenient to decide first whether it has been proved that in fact there was any substantial injury. The first argument which has found favour with the lower Court is that the valuation of the property as set out in the proclamation of sale was unduly low. Now the mortgagors who had notice of the execution petition and of the proclamation of sale never made any such objection then. The subsequent mortgagees defendants, Nos. 15 to 17, were in the execution proceedings represented by their father, the 14 defendant, who has since died. It is clear from the B diary in the execution petition, which is E.P. No. 884 of 1923, dated the 10 October, 1923, that, though the 14 defendant at the time of the settlement of the proclamation at first objected to the valuation as being low, he subsequently withdrew his objection and consented to the proclamation going out as it stood. Other subsequent mortgagees, defendants Nos. 19 to 21, who had other objections, but not this one, to the sale, also withdrew all those on the date of sale. Neither they nor the mortgagors took any objection to the low valuation in the proclamation. We are perfectly clear that parties who have thus in effect agreed to the figure which is to be advertised for the information of intending bidders, cannot be heard later on to plead that the figure was unduly low, that in effect they were consenting parties to a conspiracy to mislead bidders. In our view these respondents are estopped by their conduct from putting up such a plea and the lower Court was wrong in allowing it. It may be noted that in the enquiry on the petition to set aside the sale, none of the parties to the decree and no witnesses were called to depose that the valuation in the proclamation was low, nor were any intending bidders examined to say that they even read the proclamation or were misled by any figures given in the valuation.

(3.) It is next contended that the sale price actually fetched was unduly low.