1. Both Civil Revision Petitions can be disposed of by a common judgment. The petitioner in both the Civil Revision Petitions is the auctionpurchaser of the suit schedule property in EP No. 33 of 1983.
2. It is necessary to trace out the relevant facts leading to the filing of the Civil Revision Petitions. One Mr. Vemula Shivaramaiah filed suit in OS No. 115 of 1979 on the file of the Principal Subordinate Judge, Kurnool against late Byasani Laxmaiah for recovery of money and the said suit was decreed. By the time, EP proceedings were initiated, Laxmaiah expired and LRs., of Laxmaiah were made JDrs., in the EP late Laxmaiah had two sons, one daughter and wife. Execution proceedings were initiated by the decree holder Vemula Shivaramaiah (hereinafter called as decree holder for the purpose of convenience) and brought the schedule mentioned properties for sale. In pursuance of sale held by the Court on 12-3-1984, the auction purchaser Mr. N. Mohan Kumar, who is the petitioner in the present two Civil Revision Petitions, was the highest bidder and it was knocked down in his favour for a sum of Rs. 12,700/- subject to the mortgage decree in OS No.44 of 1979 and OS No.26 of 1983. In this regard, it is to be noted that M/s. Margadarsi Chit Funds obtained mortgage decree in OS No.44 of 1979 against the deceased Laxmaiah and the properties were subject matter of mortgage in the said suit. After the sale was affected, one son Bysani N. Narsimhaiah, petitioner in EA No. 125 of 1984 and another son Bysani Laxminarsimhaiah of late Laxmaiah, petitioner in EA No. 126 of 1984 filed petitions before the Execution Court under Order 21, Rule 90 CPC seeking to set aside the sale contending that the sale effected by the Court was invalid on the ground that there was no proper attachment, proclamation and publication of the sate of the property; that no sale notice was issued to the judgment debtors; that the auction purchaser namely the petitioner herein was nominee and close relative of the decree holder and that the participants who participated nominally in the bid are the henchmen of the decree holder and that the proclamation and publication do not disclose the conditions of bid and value of the amin and decree holder and Court. The reduction of upset price by the Court was illegal, in the absence of any petition and notice to the judgment-debtors. Thus, the bid was a stage-managed. The actual value of the property even subject to mortgage was more than Rs. 1,00,000/- and that the nature of liability is not properly disclosed and therefore the sale amount fetched was ridiculously low. Further, the sale of both the items in one lot was illegal. Each item ought to have been sold separately.
3. The first respondent decree holder opposed the application. It was stated that the petition was not maintainable and that the sale was properly held duly following the procedure as laid down by law. It was also stated that the notices were served on the judgment debtors. Two judgment debtors were set ex parte on 21-3-1983 and another judgment debtors was set ex parle on 18-11-1983. Only one judgment debtors (Bysani Laxminarsimhaiah), who is also petitioner in EA No.126 of 1984 filed objections and they were overruled and he was also set ex parte on 28-11-1983. The sale was held subject to decree in OS No.44 of 1979 only. He also denied that a collusive sale was held and that it fetched low price. It is also stated that since both the items were subject matter in the mortgage suit in OS No.44 of 1979 there was auction jointly and that there were no irregularities as alleged by the petitioner. Similar averments in the petition and the counter of the respondents were made in EA No.26 of 1984 except the petition having been filed by another son of Laxmaiah. A common enquiry was held in both the applications.
4. On behalf of the petitioners six witnesses were examined while fivewitnesses were examined on behalf of the respondents.
5. The lower Court found that there was proper service of notice on the petitioners and that there was no irregularity or illegality in the sale conducted by the Court. The lower Court also held that it was justified in conducting the auction for two properties in one lot as the said two items were subject matter of mortgage decree obtained by M/s. Margadarsi Chit Funds and finally dismissed both the applications filed by the two judgment debtors (sons of late Laxmaiah) by an order dated 19-1-1990. They carried the matter in appeal in CMA Nos. 1 and 2 of 1990 before the learned Additional District Judge, Kurnool. The learned Judge allowed the appeals by a common judgment dated 23-8-1990, against which the present two civil revision petitions have been filed by the auction purchaser.
6. The learned Counsel for the petitioner Mr. T. Veerabhadraiah submits that the appellate Court has completely misconstrued the provisions of law and rendered an erroneous judgment setting aside the order of the executing Court. He also submits that the Executing Court has correctly appreciated the legal position with reference to the facts and passed orders dismissing the applications filed by the judgment-debtors and therefore he submits that the order of the appellate Court is liable to be set aside. On the other hand, the learned senior Counsel Mr. R. Venugopal Reddy appearing for the respondent-judgment debtors submit that the appellate Court is entitled to re-appreciate the entire evidence on record and come to an independent conclusion and on such consideration it found that the sale was vitiated by various irregularities and infirmities and therefore allowed the appeals setting aside the orders of the lower Court and such an order cannot be disturbed in the revisional proceedings before this Court and therefore he submits that the revision petitions may be dismissed.
7. Before going to the merits of the case, it is necessary to trace out certain admitted facts. One Mr. Vemula Shivaramaiah, the 2nd respondent in the revision petitions obtained money decree against the estate of late Byasani Laxmaiah in OS No. 115 of 1979 on the file of the Subordinate Judge, at Kurnool. The said Laxmaiah had two sons, one daughter and a wife. Prior to the decree in OS No. 115 of 1979, M/s. Margadarsi Chit Funds also filed a suit in OS No.44 of 1979 and obtained a mortgage decree in respect of the same properties, which are the subject matter in EP No.33 of 1983. By the time, the EP was filed Laxmaiah had expired and his two sons, daughter and wife were brought on record. EP 33 of 1983 was filed for realising the decreetal amount by bringing the items 1 and 2 for sale. Item one of EP schedule is residential house bearing No.26/217 corresponding to present door No.26/223 and item No.2 is a shop bearing old door No.1/425 corresponding to the present door No.1/484. The sale was conducted subject to mortgage debt covered by judgment and decree in OS No.44 of 1979. Both the items were auctioned jointly by the Court on 12-3-1984 and one Mr. Mohan Kumar, who is the revision petitioner herein, was the auction purchaser being the highest bidder. The two sons of late Laxmaiah filed separate applications in EA No. 125 of 1984 and EA No.126 of 1984 seeking to set aside the sale conducted by Court on 12-3-1984. The other two JDrs. viz., daughter and wife did not file any application. The said applications were dismissed by the lower Court. However, in appeal the appellate Court allowed the appeals and set aside the order of the lower Court against which the present Civil Revision Petitions have been filed.
8. It is also brought to the notice of this Court that the revision petitioner, who purchased the property in Court auction on 12-3-1984 subject to mortgage decree in OS No.44 of 1979, deposited the decreetal amount of Rs.52,210/- in EP No.661 of 1989 filed by M/s. Margadarsi Chit Funds Private Limited on 7-8-1992.
9. The learned Counsel for the petitioner submits that the appellate Court had committed an error in observing that requirement of Order 21, Rule 66 CPC was not followed. Rule 66 relates to proclamation of sale by public auction, which is extracted below for proper appreciation of the matter:
Order 21, Rule 66:
(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.
(2) Such proclamation shall be drawn up after notice to the decree holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible-
(a) the property to be sold (or, where a part of the property would be sufficient to satisfy the decree, such part)
(b) the revenue assessed upon the estate of part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;
(c) any incumbrance to which the property is liable;
(d) the amount for the recovery of which the sale is ordered; and
(e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of theproperty;
(3) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation.
(4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto.
10. The learned Counsel for the petitioner submits findings of the appellate Court that the properties were not attached after the judgment and the attachment was only done before the judgment, prior to filing of the execution petition and that the executing Court did not follow the proper procedure as incorporated in Order 21 CPC that the appellate Court found that the judgment-debtors were not properly served are not correct. He submits that there was proper attachment and proclamation and publication was in accordance with Order 21 CPC Mr. T. Veerabhadraiah submits that since the attachment was already effected before judgment; fresh attachment order under Order 21, Rule 54 CPC was not necessary. He relied on a decision of this Court in P. R. Reddy v. M.R. Reddy, 1988 (1) ALT 780. It is true under Rule 54 CPC,the Court shall attach the property by passing an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge. The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale. The order of proclamation shall be done by beating of drums and other customary modes and the order shall be affixed on a conspicuous places as laid down under sub-rule (2) of Rule 54 CPC. Justice M. Jagganadha Rao, as he then was considered the scope of Order 21, Rule 54( 1 -A) and 66 and Order 38 in P.R. Reddy's case (supra). He held:
'In cases where there is attachment before judgment, there is no question of giving notice for settling the terms of proclamation of sale at the stage of attachment before judgment. When there is already attachment before judgment, the question of again rc-atlachment at the stage of execution would not arise in view of Order 38, Rule 11 CPC and at that stage there is no question of going back to the provisions of Order 21, Rule 54(1-A) CPC.'
11. Thus, the judgment is clear that whenever there is attachment before judgment under Order 38, Rule 5 CPC the question of re-attaching the property in the execution proceedings does not arise. Rule 11 and 11-A of Order 38 is clear to this effect, which reads as follows:
'11. Property attached before judgment not to be re-attached in execution of decree-
Where property is under attachment by virtue of the provisions of this Order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property. 11-A. Provisions applicable to attachment-
(1) The provisions of this Code applicable to an attachment made in execution of a decree shall, so far as may be, apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of Rule 11.
(2) .............................................'
Therefore, in view of this, it has to be clearly held that no separate attachment is necessary in the execution proceedings as required under Rule 54.
12. The learned senior Counsel Mr. R. Venugopal Reddy, however, submits in execution proceedings it is mandatory the Court should effect attachment under Rule 54 of Order 21 and further proceedings shall be taken as per sub-rules (1-A) and (2). He relied on the judgment of Supreme Court in Desh Bandhu Gupta v. N.L. Anand and Rajinder Singh, : (1994)1SCC131 . The Supreme Court was dealing with Order 21, Rule 66 and it held that notice to JDr. is mandatory unless proviso is applied. The Supreme Court held:
'Service of notice on the judgment-debtor is a fundamental part of the procedure touching upon the jurisdiction of the Execution Court to take further steps to sell his immovable property. Therefore, notice under Order 21, Rule 66(2), unless proviso is applied (if not already issued under Order 21, Rule 22), and service is mandatory. It is made manifest by Order 21, Rule 54(1-A) brought on statute by 1976 Amendment Act with peremptory language that before settlingthe terms of the proclamation of sale. The omission thereof renders the further action and the sale in pursuance thereof void unless the judgment-debtor appears without notice and thereby waives the service of notice.'
The Supreme Court did not consider the effect of attachment before judgment under Order 38, Rules 5, 11 and 11-A without reference to Order 21, Rules 54 and 66 and it did not lay down any principle to the effect that when the attachment before judgment was effected during the pendency of the suit once again attachment should be effected under Rule 54 of Order 21. The decision of the learned single Judge is directly on the issue and I have to necessarily disagree with the contention of the learned Counsel for the judgment debtors.
13. The learned Counsel for the Revision Petitioner submits that the finding of the appellate Court that there was no proper notice served on the decree-holder is also incorrect. He refers to the docket sheet of the executing Court. The EP was filed on 18-2-1983 for a sum of Rs. 19,872-25 ps., and the decree holder prayed for sale of EP schedule property already attached before judgment in IA No.342 of 1979 on 4-11-1979. For issue of sale notice the matter was posted to 21-3-1983. Notices were served on all the respondents-judgment-debtors. Respondents 2, 3 and 4 were represented by an advocate and they were set ex parte on 21-3-1983. However, fresh notice was ordered for respondent No.5. The matter was being adjourned from time to time for service on respondent No.5 and finally the notice was served by a fixture on 18-11-1983. The matter was taken up for enquiry on 28-11-1983 and the judgment-debtor who filed counter was not present and he was set ex parte. Since the Court found that there was no triable grounds in the counter filed by the 2nd respondent, the matter was posted for settlement on 5-12-1983 and the same was settled on the said date. Proclamation of sale was ordered to be held on 17-1-1984. Notice was published in the paper fixing the date of sale on 17-1-1984. The sale was not held on the said date as the Presiding Officer was on casual leave. The sale was again published fixing the date on 12-3-1984. The sale proceedings were conducted and knocked down in favour of N. Mohan Kumar, the revision petitioner, for a sum of Rs. 12,700/- subject to the mortgage decree in OS No.44 of 1979.
14. The question that arises for consideration is whether there was a proper notice of proclamation?
15. It is in evidence that all the decree holders were served, but it is the contention that the proclamation was not drawn after the notice to the judgment-debtors fixing the time and place of sale and accurately specifying the properties to be sold and also specifying the encumbrances. There is no dispute about the publication of proclamation of sale. The only question that was canvassed is that the notice was not issued to the judgment-debtors. The appellate Court found that there was no proper compliance of Rule 66 of CPC.
16. As can be seen from sub-rule (2) of Rule 66, the notice to the judgment debtors is mandatory before settling the proclamation of intended sale as held by the Supreme Court in Deshbandhu Gupta's case (supra). However, this notice is not necessary when Order 21, Rule 54 was complied with.
17. Justice M. Jagannadha Rao, Judge of this Court (as he then was), in the case of George v. Sambamurthy, 1984 (2) ALT 19, observed that under Order 21, Rules 54(1-A) and 66(2) CPC the judgment-debtor is entitled to a notice even at the stage of attachment to furnish value of theproperty for the purpose of settling sale proclamation. In cases where the judgment-debtor has been given such an opportunity at the stage of attachment of the proceeding, the first proviso to Order 21, Rule 66(2) CPC makes it clear that it shall not be necessary to give further notice to the judgment-debtor at the time of settling the sale proclamation, unless there is a specific direction by the Court. Therefore, if once a notice is given at the stage of attachment under Order 21, Rule 54(1-A) CPC it is not necessary to give further opportunity to the judgment-debtor under first proviso to Order 21, Rule 66(2) CPC.
18. In this case the judgment-debtors were served with notice as required under Rule 66(2} as can be seen from the docket sheet of the Court and it was also stated that the sale was subject to the mortgage decree in OS No.44 of 1979 as disclosed in the proclamation of sale settled on 5-12-1983. More over, one of the judgment-debtors having filed the counter remained ex parte. Therefore, when the judgment-debtors by their own conduct refuse to participate in the proceedings, finalisation of proclamation proceedings cannot be said to be illegal or contrary. Hence, the finding of the appellate Court that there was no notice and proper proclamation cannot be sustainable. The appellate Court's finding that the Executing Court made casual approach without following the provisions contained under Rule 66, Order 21 CPC also cannot be said to be sustainable in law.
19. It is contended by the learned Counsel for the respondents that the sale proclamation was not published in telugu, even though it was published in telugu. He also submits that the Executing Court did not take the value of the judgment-debtor and that it was sold for reasonable low price and that the sale was conducted without proper publication so as to detract the prospective purchasers to participate in the auction. All these contributing factors have certainly vitiated the sale proceedings and the findings of the appellate Court on this aspect are emphatic and therefore, no interference is called for by this Court. It is true under Section 90 CPC application is maintainable for setting aside the sale on the ground of irregularity or fraud. That the principal ingredient in the said rule is that the sale shall not be set aside, unless it is proved and the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. Rule 90 CPC is extracted below:
'Section 90. Application to set aside sale on ground of irregularity or fraud--(1) Where any immovable property has been sold in execution of a decree, the decree holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.
(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.
(3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.'
Therefore, what is required to be pleaded and proved and the Court should be satisfied about the principal ingredient are that there must be a material irregularity or a fraud either in publishing or conducting the salewhich should result in substantial injury to the party. This benefit is given to the decree holder, purchaser or any other person is entitled to interest in the property.
20. Whether the grounds noted by the appellate Court would constitute material irregularity is a prime question. The Supreme Court in Radhy Shyam v. Shyam Behari, AIR 1973 SC 2337, observed that in order to set aside an auction sale, mere proof of material irregularity such as the one under Rule 69 and inadequacy of price realised in such a sale, in other words injury, is not sufficient. What has to be established is that there was not only inadequacy of the price but that inadequacy was caused by reason of the material irregularity or fraud. A connection has thus to be established between the inadequacy of the price and the material irregularity.
21. The Supreme Court in Gajadar Prasad v. Bhakta Ratan, : [1974]1SCR372 , while dealing with Order 21, Rule 66 CPC after reviewing various authorities observed as follows:
'A review of the authorities as well as the amendments to Rule 66(2)(e) make it abundantly clear that the Court, when stating the estimated value of the property to be sold, must not accept merely the ipse dixit of one side. It is certainly not necessary for it to state its own estimate. If this were required, it may, to be fair, necessitate insertion of something like a summary of a judicially considered order, giving its grounds in the sale proclamation which may confuse bidders. It may also be quite misleading if the Court's estimate is erroneous. More over, Rule 66(2)(e) requires the Court to state only the facts it considers material for a purchaser to judge the value and nature of the property himself. Hence, the purchaser should be left to judge the value for himself. But, essential facts which have a bearing on the very material question of value of the property and which would assist the purchaser in forming his own opinion must be stated. That is, after all, the whole object of Order 21, Rule 66(2)(e) Civil Procedure Code. The Court has only to decide what all these material particulars are in each case. We think that this is an obligation imposed by Rule 66(2)(e). In discharging it, the Court should normally state the valuation given by both the decree holder as well as the judgment-debtor where they have both valued the property; and these do not appear fantastic. It may usefully state other material facts, such as the area of land, nature of rights in it, municipal assessment, 'actual rents realised, which could reasonably expected to effect valuation. What could be reasonably and usefully stated succinctly in a sale proclamation has to be determined on the facts of each particular case. Inflexible rules are not desirable on such a question.'
'In the case before us, the execution Court had practically accepted, as its own valuation, without indicating reasonable grounds for this preference, whatever the decree holders had asserted about the value of the property. It did not bother to seriously even consider the objections of the judgment-debtors. We think that the duty to consider what particulars should be inserted in the sale proclamation and how the sale ought to be conducted should be performed judicially and reasonably. If the execution Court does not, as it did not in the case before us, apply its mind or give any consideration whatsoever to the objections of the judgment-debtor, we think a material irregularity would be committed by the execution Court. It is not necessary for the execution Court to order the insertion of a judicially passed order in the sate proclamation itself, but, it should pass an order showing that itapplied its mind to the need for determining all the essential particulars, which would reasonably be looked for by a purchaser, and which should be inserted in the sale proclamation. The order should show that it considered the objections, if any, of the decree-holders or the judgment-debtors, as the case may be. It should not merely accept unhesitatingly the impse dixit of one side. We think that the execution Court had not performed its duty fairly and reasonably in this case. After embarking on the difficult task of valuation, it rejected the judgment-debtors' figures by merely observing that they are exaggerated and practically accepted without hesitation whatever the decree holders submitted, but this valuation was proved to be incorrect judged by the results of auction sales taken as a whole.'
22. The Madras High Court in the case of A. U. Natarajan v. Indian Bank, Madras, : AIR1981Mad151 , held that:
'The expression 'value of a property' and 'upset price for a property' brought for sale in a Court auction are not synonymous but have entirely different meanings. The term 'upset price' means lowest selling price or reserve price.'
The Division Bench further held that:
'If, inspite of the procedure having been followed, the sale does not take place for want of bidders, then the Court can on the application of the decree holder fix an upset price for the property at a rate as near as the property would be worth in the estimation of the Court. Even if then, the sale does not take place, the decree holder can move the executing Court to reduce the upset price. The Court can reduce the upset price or not, depending upon the circumstances of the case, and reduction is to be made, decide the extent to which the upset price should be reduced. Thus, power is given to the Court to reduce the upset price whenever necessary and that the circumstances demand such a reduction. The fixation of the upset price is only for facilitating the conduct of the sale and safeguarding the interests of the judgment-debtor. De hors of fixation of upset price and notwithstanding the fact that a bidder has offered an amount higher than the upset price. It is also open for the judgment-debtor to prove that the property has been sold for a low price on account of some material irregularity or fraud in the publication or conduct of the sale and have the sale set aside.'
But, in the instant case, the Court has reduced the upset price as there was no proper response from the bidders. More over, it is not as if the bid was struck at the upset price fixed by the Court, but it was enhanced to Rs. 12,700/-, while the upset price was reduced to Rs. 10,000/-. Thus, it cannot be said that the reduction of price resulted in substantial injury to the judgment-debtors. It cannot be styled as material irregularity or fraud in the publication or conduct of the sale.
23. The Supreme Court in its judgment in Ambati Narsayya v. M. Subba Rao, : AIR1990SC119 , held that:
'duty is cast upon the execution Court under Order 21, Rule 64 to sell only such property or a portion thereof as necessary to satisfy the decree. It is mandate of the Legislature which cannot be ignored.'
In the instant case, both the properties were sold together. It is the case that both the properties were subject matter in the mortgage decree and they are liable to be sold jointly. Even otherwise, it has to beseen that these objections must be filed by the judgment-debtors before settlement of sale proclamation. Order 21 CPC itself precludes judgment-debtors to make such objections, which he might have taken at the time of settlement of issues. Thus, if the judgment-debtors failed to take objections at the time of finalisation of settlement of proclamation, he cannot make the same in a subsequent proceedings attacking the sale. Even though, it is sought to be contended that if the two properties are sold separately, they would have fetched more amount. But this contention cannot be accepted for the reason that the judgment-debtor did not evince any interest during the sate proceedings even though sufficient opportunity was given. Keeping in view the impending mortgage decree, the executing Court thought it fit to auction them in one lot and it was knocked down for Rs. 12,700/-subject to mortgage decree. Thus, it cannot be said that the judgment-debtors were in any way prejudiced by auctioning the two properties. It is not even the case of the judgment-debtors that one property could have fetched the entire amount. Under these circumstances, I do not find that the judgment-debtors are justified in contending that the two properties should have been auctioned separately.
24. The Supreme Court in M/s. Shalimar Cinema v. Bhasin Film Corporation, : AIR1987SC2081 , held that where the bid list prepared in a Court auction though contained a statement that the announcement as to adjournment of the auction (o a particular date was made on spit the auction purchaser did not examine the auctioneer in support of the case that the announcement was made on the spot even though the judgment-debtors in their objections to the sale had expressly raised and put in issue the question as to whether the sale was adjourned to the date in question and as to whether the announcement as to adjournment was made on the spot and there was the significant circumstance that none of the bidders who participated in the first auction participated in the auction held on the adjourned date, the conclusion that no announcement as to adjournment of the auction was made on the spot. But, that situation is also not available in the present case. Originally, the sale was scheduled to take place on 17-1-1984, but on that day the Presiding Officer was absent and thereafter the date was fixed to 12-3-1984. The notification was duly published in the press. Therefore, it cannot be said that the bidders have no proper notice. Even one of the judgment-debtors, according to him, appeared on the said date. Therefore, it cannot be said that the sale was unfairly conducted on adjourned date and it was illegal and contrary to law.
25. Keeping in view the dicta laid down in the aforesaid judgments, it has to be held that the view taken by the lower appellate Court is contrary to law laid down by the Supreme Court. What has to be considered is that the procedure as contemplated under Order 21 CPC has to be followed meticulously. If any irregularity creeps in that process, on that ground the sale cannot be set aside unless such irregularity is a material irregularity which goes to the root of the matter and such material irregularity caused substantial loss to the judgment-debtors. But, in the instant case, it is not established that any substantial loss was caused. However, the judgment-debtors remained ex parte and they did not make objections at any point of time. When the notices were served it is incumbent on their part to participate in the proceedings and file their respective objections. The most important omission committed by the judgment-debtors is that at the time of settlement of proclamation, they did not participate even though the notices were served. Another important question that has to be inferred in this regard is that if the judgment-debtors felt that the propertyfetched ridiculously low amount in the auction in such case, nothing prevented them from claiming the very same property by depositing the necessary amounts before the Court. Thus, it is clear that the judgment-debtors wanted to play hide and seek game so as to keep the litigation alive.
26. Admittedly, the sale proclamation was published in Telugu daily and in fact it is not disputed that one of the judgment-debtors (2nd respondent) attended the Court on 12-3-1984 and it is in the evidence that he came with an idea of filing an application for postponement of sale. The sale was held on 12-3-1984. It maybe that the lawyers had boycotted the Court but at the same time the Court proceedings took place and the auction was conducted. In the auction number of bidders participated including the revision petitioner. The only deficiency in the sale notice is that the time of sale was not notified, but that would not be a material irregularity going to the root of the matter. More so, when one of the judgment-debtors attended the Court on 12-3-1984, obviously, he had knowledge of the sale. It was not the case of the judgment-debtors that he intended to bring some more bidders, but for the reasons best known to him neither he waited till sale took place nor he filed an application for postponing the sale giving reasons thereof. In the proclamation also the value was given by the decree holder and amin was mentioned but since the judgment-debtors did not give any valuation, there is no obligation on the part of the Court to postpone the settlement indefinitely. The very purpose would be frustrated. More over, when the judgment-debtors were served, they are bound to place relevant facts before the Court. Therefore, the finding of the appellate Court that there were serious irregularities or illegalities in observing the conditions laid down under Rule 66 CPC cannot be sustained. Further, under Rule 90 CPC the judgment-debtors should not only establish that the procedure was not followed but they should also establish that substantial injury was sustained by them.
27. Another contention which is raised by the learned Counsel for petitioner also is equally important. He submits that when the judgment-debtor failed to take these grounds before the settlement of proclamation and proposed sale he is estopped from urging the said grounds in the application filed under Rule 90 of Order 21 CPC. He submits that under sub-rule (3), no application to set aside a sale under this rule shall be entertained upon any ground, which the applicant could have taken on or before the date on which the proclamation of sale was drawn. Further, mere absence or defect in attachment of property sold in auction shall not be a ground for setting aside the sale under this rule, He submits that all these grounds which are urged in application filed under Rule 90 ought to have been urged under Rule 66 of Order 21. He failed to do so, even in spite of notice. He is estopped from taking those grounds after the sale was effected. The learned Counsel relied on the decision of the learned single Judge of this Court reported in J. Thimmaraju v. Uppuluri Brahmanna, : 1998(3)ALD404 . The learned Judge while dealing with Order 21, Rules 90, 64 and 66(2)(a) CPC held that:
'Entire property attached put to sale for realisation of decretal amount as judgment-debtor remained absent and did not raise objection for sale of the entire attached property on the grounds of illegality, irregularity or fraud under Order 21, Rule 90 CPC when notice of attachment was served on him and when proclamation of sale was settled. He cannot, thereafter challenge the sale on the ground that a portion of the property would have been sufficient to satisfy the decretal amount. The sale was not liable to be set aside.'
28. In the case of V. Satyanarayana v. B. Balakishore, : 1992(1)ALT666 , the teamed single Judge of this Court observed that an opportunity in matters relating to Court auction under Order 21, Rule 90 CPC, the judgment-debtor cannot object to Court sale when sufficient opportunity was given. Valuation in sales statistics cannot be a basis for Court sales.
29. It is true that in spite of notice having been served, the judgment debtor did not participate in the enquiry and it would not be appropriate for them to again agitate these issues under Rule 90 and there is a clear bar for raising such grounds. The grounds which ought to have been raised at the stage of 66, cannot be allowed to be raised at the stage of 90. Thus, on this ground also the judgment debtors are also precluded from raising such grounds touching the procedural violations as contained under Rule 66. In view of the above, I am of the considered view that the finding of the appellate Court is erroneous and contrary to taw. The reasons assigned by the executing Court are in tune with the judgments of the Supreme Court and various High Courts. Thus, I find that the appellate Court committed error apparent on the face of record and it failed to appreciate the relevant factors while setting aside the sale.
30. It is lastly contended that the lower Court is not entitled to reduce the upset price fixed. This contention also does not hold much water. Initially, the upset price was fixed at Rs. 15,000/- and subsequently it was reduced to Rs. 11,000/- on the ground so as to attract sufficient bidders. But, however, the bid was not struck at the upset price. But, it was enhanced during the bidding process and ultimately, it was struck at Rs. 12,700/- subject to mortgage deed. Thus, it is to be seen that no prejudice can be said to have caused or any substantial injury was caused to the judgment debtors. After executing the mortgage debt, it fetched to Rs.12,700/-. That goes to show both the properties were fetched Rs. 65,000/-. In such a situation, it cannot be said that the price fixed was ridiculously low. Further, it is to be noted in this regard if the judgment debtors are really aggrieved by the low price, they could have taken steps to file an application under Rule 89 to set aside the sale on depositing the money by complying with the conditions mentioned in Rule 89. But, this was not done for the reasons best known to him. More over, as observed by this Court, it is not ridiculously low price. Under these circumstances, this contention also does not stand to scrutiny.
31. In view of the foregoing discussions, I am satisfied that the judgment of the appellate Court is wholly illegal and contrary to law. Accordingly they arc set aside and the CRPs., are allowed confirming the order of the lower Court. No costs.