Judgment:
ORDER
Ramesh Madhav Bapat, J.
1. This Civil Revision Petition arises out of the order dated 28-1-1988 passed by the Additional District Judge, Madanapalle in C.M.A. No. 70-A of 1986.
2. In order to appreciate the controversy involved in this petition, it is necessary to know the previous background.
3. The rather of the petitioners herein was the original plaintiff in O.S.No. 629 of 1977 on the file of the Principal District Munsif, Madanapalle. The said suit was filed by the fattier of the petitioners herein for recovery of certain amount from the defendants-respondents herein. The suit was decreed. Against the said judgment and decree passed by the learned Principal District Munsif, Madanapalle, an appeal appears to have been filed. It was dismissed. Thus, the decree passed in the aforesaid suit became final. Thereafter, the father of the petitioners herein filed O.E.P. No. 152 of 1980 for sale of items A and B of plaint schedule property. After the said application was filed, the learned Principal District Munsif, Madanapalle directed to hold the sale by completing the formalities of sale of immovable property. The publication was issued on payment of batta and by beating drums in the town of Madanapalle. The sale was directed to be held on 29-12-1980. It further appears from the record that the father of the petitioners herein i.e., the plaintiff-decree-holder, filed an application seeking permission of the Court to participate in the sale and the said petition was allowed.
4. It further appears from the record mat on 29-12-1980 the judgment-debtors-respondents herein paid Rs. 700/- and the sale was adjourned to 21-1-1981. On 21-1-1981 the judgment-debtors-respondents herein represented to the Court that they obtained stay order in the Subordinate Judge's Court and the matter was adjourned to 21-2-1981 for sale. In the petition filed for stay, (he Subordinate Judge's Court had directed the judgment-debtors-respondents herein to deposit a sum of Rs. 6,000/- and costs, which was Worked out at Rs. 7,675-25 ps. The judgment-debtors-respondents herein foiled to deposit the said amount and thus the stay was vacated by the Sub-Court and hence the learned Principal District Munsif, Madanapalle posted the sale to 21-2-1981 according to the Laws.
5. It further appears from the record that the suit schedule property was sold in the Court auction. Many bidders participated in the auction. The father of the petitioners herein being the highest bidder, the sale was knocked down for Rs. 15,000/- in his favour. The sale was yet to be confirmed in favour of the father of the petitioners herein and the sale certificate was yet to be issued in favour of the father of the petitioners herein.
6. It appears from the record that the judgment-debtors-respondents herein filed E.A. No. 201 of 1981 and prayed the Court of the Principal District Munsif, Madanapalle that the sale knocked down in favour of the father of the petitioners herein be set aside on the ground mat the suit schedule property was not properly described. There were material irregularities in the sale proceedings. The decree-holder i.e., the father of the petitioners herein, is a powerful man and the other bidders were his dose friends and relatives. The property, which was sold, is situated within the municipal limits of Madanapalle which is fit for house site. The value of the land was about Rs. 2,00,000/-and it was knocked away by the father of the petitioners herein for grossly low sum of Rs. 15,000/-. The decree-holder i.e., the father of the petitioners herein, did not allow the bidders to come forward and participate in the bid. The decree-holder has not got the proclamation of the property effected within the prescribed time under law. The publication effected does not contain the price of Amin's value and the encumbrances of the property. This was done by the decree-holder with a view to arrest the bidders from coming and participating in the Court auction. The sale batta was not paid in time. The sale affidavit does not indicate proper details of the property sought for under auction. The Court was carried away by misrepresentation of facts and got both the items attached and sold under single item. The publication of sale was not done by beating drums and hence it was prayed by the judgment-debtors-respondents herein to set aside the sale dated 21-2-1981.
7. It further appears from the record that the father of the petitioners herein filed counter and denied all the averments made by the judgment-debtors-respondents herein and prayed mat the application filed by the respondents herein be dismissed.
8. It further appears from the record that the parties to E.A. No. 201 of 1981 were allowed to lead the evidence.
9. It further appears from the record that the respondents herein examined themselves as P.Ws.1 and 2. One Polipalli Chandrasekhar, who was a resident of Basinikonda village, was examined as P.W.3 by the respondents herein and one Rachapalle Venugopal Reddy, who was a resident of Madanapalle, was examined as P.W.4. The respondents herein also brought certain documents on record and they were marked as Exs.A-1 and A-2.
10. It further appears from the record that the father of the petitioners herein, who was the respondent in E. A.No. 201 /81, led evidence by examining himself as R.W.1 and filed certain documents which were marked as Exs.B-1 to B-6.
11. On hearing both sides., the learned Principal District Munsif, Madanapalle by his order dated 25-9-1986 dismissed E.A. No. 201 of 1981 with costs.
12. It further appears from the record that being aggrieved by the aforesaid order, the respondents herein filed an appeal being C.M.A. No. 70-A of 1986. The said C.M.A. was allowed. Against the said judgment and decree, the present revision has been filed by the petitioners herein i .e., the legal heirs of the original decree-holder.
13. It appears from the record that during the pendency of the appeal, the original decree-holder late P. Gangaiah Naidu died and therefore his legal representatives were brought on record as respondents 2 to 4 in the appeal as per the order passed in LA. No. 374/87 dated 20-8-1987. The legal representatives of the original decree-holder were the respondents 2 to 4 in C.M.A, No. 70-A of 1986 and they are petitioners herein.
14. Considering the above litigation, the point arises for consideration of this Court whether the learned Addl. District Judge, Madanapalle was justified in allowing C.M.A. No. 70-A of 1986 by setting aside the order passed by the learned Prl. District Munsif, Madanapelle in E.A. No. 201 of 1981.
15. As stated earlier, the respondents herein had examined four witnesses in the trial Court. It is also evident from the record that the Advocate Commissioner was appointed earlier to ascertain the value of the property sold in auction. The Court had examined the Advocate-Commissioner as C.W.1. The Advocate-Commissioner produced certain documents and they were marked as Exs.C-1 to C-3.
16. It was the contention of the respondents herein in the Prl. District Munsif's Court, Madanapalle that the value of the property was Rs. two lakhs as it is situated adjacent to Madanapalle-Chittoor Road. After one year of the sale, taking into consideration the above value, the value of the property sold in Court auction must be worth Rs. 75,000/- at least on the date of sale.
17. It appears to have further contended by the respondents herein that the proclamation issued under Order 21 Rule 66 C.P.C. was not complied with properly. The decree-holder did not allow the others to come forward to participate in the Court sale.
18. It appears from the evidence of P.W.1 that before the sale, a sale notice was served on him and subsequently his Advocate appeared and filed his vakalatnama. The first respondent herein i.e., P.W.1, knew about the sale and the value fixed much before the date of sale. At that point of time, he did not raise any objection alleging that any fraud was committed regarding the fixing of minimum sale price when he was quite aware that the value of the property was over about Rs. 70,000/- on the date of sale. Therefore, it appears from the record that the learned Prl. District Munsif disbelieved the evidence of P.W.1 i.e., the 1st respondent herein.
19. It further appears from the record that according to the version of P.W.1, there is a factory at the distance of 100 yards from the suit schedule property towards East and there are 1000 houses within the vicinity. According to his version that the cost of the land was about Rs. 5,000/- per kunta equivalent to 2 1/2 cents. Inspite of this, the 1st respondent herein did not take any objection. Therefore, the learned District Munsif appears to have dismissed his contention.
20. It further appears from the evidence of P.W.2, who had also come forward to say that the value of the property was much more than the value of the property, which was fixed by the Court Amin or the Court Commissioner. As per her version, the value of the property was Rs. 3,000/- per kunta. P.W.2 further stated that she came to know about the auction about 10 days after the sale. But the said position does not appear to be true.P.Ws.1 and 2 are the husband and wife. P.W.1 represents P.W.2 in all proceedings. Therefore, the said contention appears to have been rejected by the learned District Munsif.
21. Again it can be seen that there is a variance in the version of P.Ws.1 and 2. P.W.1 has stated that the cost of the land was more than Rs. 2,000/- per kunta. P.W.2 has stated that the cost of the land was more than Rs. 3,000/- per kunta.
22. P.W.3 has come to support the original judgment-debtors i.e., the respondents herein. He stated that on 3-6-1982 he sold three kuntas of site in Basanikonda village near the suit schedule property for Rs. 9,000/- as per Ex.A-1. According to his version, the suit schedule property worth about Rs. 10,000/- per kunta. It can be seen from the evidence of P.W.3 that as far as the suit schedule property is concerned, there is a variance in the value of the property in his narration and the narration of P.Ws.1 and 2.
23. P.W.4 was examined on behalf of the judgment-debtors-respondents herein. He has produced certain documents as per Ex.A-2. According to his version that on 26-3-1984 he sold four kuntas of land to one Shabina Sultana for Rs. 15,000/-. The learned District Munsif found that there is also variance in his version as compared to the evidence of other witnesses.
24. As stated earlier, the Advocate Commissioner was also examined as C.W.1 in these proceedings. When he inspected the site, Sri Venkataramaiah Chetty and Sri Vijayakumar and both the parties were present on the spot. C.W.1 stated that the father of the petitioners herein had supplied one sale deed pertaining to 1981 year and also in respect of the land located in the same survey number and that particular document was taken into consideration by the Court Commissioner. The respondents herein also supplied two sale deeds pertaining to the year 1982 concerning with the land situated at Madanapalle Municipal Town limits. The documents produced by the respondents herein were not relied upon by the Advocate Commissioner as those lands situated within the municipal limits of Madanapalle. Therefore, the learned District Munsif held that the Advocate Commissioner's report is much reliable as far as the value of the property is concerned. The said fact does not appear to have been taken into consideration in detail by the Appellate Court.
25. It further appears from the record that the learned District Munsif considered as to whether there was a proper attachment of property and whether there was a proclamation of sale. The learned Judge held that both the parties contested the matter at the time of suit and after passing the decree, the defendants-judgment-debtors had preferred an appeal before the Subordinate Judge, Madanapalle by filing A.S. No. 68 of 1980. In that, conditional stay was granted on payment of Rs. 6,000/- but the judgment-debtors-respondents herein failed to pay the said amount and the stay was vacated. The learned Judge further held mat though there was an order of sale, the respondents herein had not taken any objection to that effect. They also did not lead evidence to that effect. The learned Judge further held mat in execution proceedings, a sale notice was served on both the parties as per Ex.B-5. Even at that time no such contention was raised though the judgment-debtors sought many adjournments for one ground or the other. The learned Judge, therefore, held that the contention of the judgment-debtors that the sale notice was not properly issued and it was rejected. As far as the proclamation is concerned, me learned Judge on the strength of Ex.B-5 held that the proclamation was issued on 31-12-1980. He further held that the batta was paid on 14-11-1980. The 1st respondent herein filed E. A. No. 860/80 to adjourn the sale on the ground mat he paid Rs. 700/-. At that time the first respondent herein wanted to file an appeal in the Court of the Subordinate Judge. Taking these facts into consideration, the learned Judge held that the objections raised by the respondents-judgment-debtors have no legal force.
26. The learned Counsel Mr. P.S. Narayana appearing on behalf of the petitioners herein relied upon a ruling of this Court in Kamineni Santhakumari v. State Bank of India, rep. by its Branch Manager and Anr., 1996 (1) An.W.R. 576 = 1996 (2) ALD 721. The learned Judge of this Court held:
'That Order 21 Rule 90 - Application to set aside sale on the ground of misdescription of property - Even if there is some misdescription, sale cannot be set aside if it does not result in substantial loss to the judgment-debtor.'
27. The learned Counsel for the petitioners herein also relied upon a ruling reported in Jaswantlal Natwarlal Thakkar v. Sushilaben Manilal Dangarwala and Ors., : AIR1991SC770 . It was held by their Lordships that:
'Objection on ground of grant of permission to decree-holders not only to bid but to bid at price lesser than upset price, without notice to judgment debtor - However, causing of substantial injury to objector is not the consequence of irregularity.'
28. The learned Counsel for the petitioners herein also relied upon a ruling of this Court reported in V. V. Narayana Chetty v. Nonla Dhanamma and Anr., 1983 (2) ALT 166. It is the judgment of Division Bench of this Court. It was held:
'C.P.C. Amending Act of 1976 - Section 97(2) and 97(3) of me Amending Act - Order 21 Rule 66(2) - Applicability of Amending Act to pending Execution Proceedings judgment-debtor's valuation not mentioned -Sale is not vitiated unless it is shown that there is substantial evidence.'
29. The learned Counsel for the petitioners herein also relied upon a ruling reported in Radhey Shyam v. Shyam Behari Singh, : [1971]1SCR783 . It was held by the Apex Court of this Country as follows:
'In order to set aside an auction sale mere proof of a 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.'
30. As against the above rulings, the learned Counsel Mr. K. Ashok Reddy appearing on behalf of the respondents herein relied upon a ruling reported in Moolchand and Ors. v. Fatima Sultana Begum and Ors., : (1995)6SCC742 . Their Lordships held:
'Order 21 Rule 90 C.P.C. - Inherent power of Court in conducting sale of property - scope - Interest of justice is the primary consideration - Sale of property by Court through Receiver appointed by it - Application under Order 21 Rule 90 for setting aside the sale rejected by the trial Court as being not maintainable.'
Looking to the above ruling, this Court has no hesitation in holding that the ruling cited by the learned Counsel for the respondents herein has no application in the present set of facts. The learned District Munsif did not dismiss the application for setting aside the sale on the ground that it was not maintainable but he dismissed on its merits, but the Appellate Court did not agree with the findings of the Executing Court.
31. The learned Counsel for the respondents herein further relied upon a ruling reported in State Bank of India v. Ajit Jain and Ors., : 1994(5)SCALE65 (D.N.) Their Lordships held:
'That auction sale of property in execution of the decree in favour of the appellant bank - Objection filed by the appellant as well as the judgment-debtor on the ground that the sale was vitiated being for a price far below the reserved price and contrary to the procedural requirements -Objections rejected and the sale certificate directed to be issued by the trial Court-Order of single Judge of High Court, setting aside the sale, set aside by Division Bench - Appeal preferred before Supreme Court - Due to protracted litigation decree obtained in 1976could not be executed and the auction-purchaser entering into possession and continuing as such since past many years - Meanwhile the decretal amount of Rs. five lakhs and odd swelling to nearly Rs.15 lakhs while the bank would be getting only Rs. 1,90,000/- being the sale price - Property being valuable and the auction-purchaser being willing to pay substantial amount both to the bank and to the decree-holder, in order to do substantial and complete justice between the parties, Supreme Court under Art.142 directing the purchaser to pay Rs. 15 lakhs to the bank and Rs. five lakhs to the judgment-debtor-Constitution of India Article 142.'
Looking to the above ruling, this Court holds that the facts discussed in the above ruling are not applicable to the present set of facts. Moreover, this Court holds that under Article 142 of the Constitution of India, the Supreme Court can alone exercise the jurisdiction which is not vested in the High Court.
32. The learned Counsel for the respondents herein also placed reliance upon the following rulings reported in Mt. Bibi Aziman and Anr. v. Mt. Saleha and Ors., : AIR1963Pat62 ; Basanta Kumar Biswas v. Mihirlal Biswas, : AIR1968Cal604 and Deshbandhu Gupta v. N.L. Anand and Rajinder Singh, : (1994)1SCC131 .
33. The above discussion pertains to the grounds raised by the judgment-debtors-respondents herein for setting aside the sale on facts. But the legal position was not placed before this Court by any of the counsels.
34. The judgment-debtors-respondents herein have been given unqualified right to make an application within one month from the date of sale to set aside the order on fulfilling certain conditions. The said provision is incorporated under Order 21 Rule 89 read with Order 21 Rule 92 C.P.C. Order 21 Rule 89 C.P.C. reads as follows:
'Or.21 R.89: Application to set aside sale on deposit:
(1) Where immovable property has been sold in execution of a decree (any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person) may apply to have the sale set aside on his depositing in Court-
(a) for payment to the purchasers sum equal to five per cent of the purchase-money, and
(b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.
(2) Where a person applies under Rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule.
(3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale.'
There is a State Amendment to the Rule 89, which is similar to the State Amendment of Madras, which reads as follows:
Madras Amendment:
In Sub-rule (1), for the words 'any person, either owning.... before such sale' substitute the words 'the judgment-debtor or any person deriving title from the judgment-del or any person holding an interest in the property.'
At the end of Sub-rule (1), insert the following proviso:-
'Provided that where the immovable property sold is liable to discharge a portion of the decree-debt, the payment under clause (b) of this Sub-rule need not exceed such amount as under the decree the owner of the property sold is liable to pay.'
35. Considering the above position in law, this Court holds that the present judgment-debtors did file an application within one month. In that event, the Executing Court ought to have allowed an application to set aside the sale by giving an opportunity to the judgment-debtors to make payment of the decretal amount with costs and interest. The judgment-debtors have to pay the said amount within the period of 30 days from the date of making the application for setting aside the sale or within the time fixed by the Executing Court. Order 21 Rule 92(2) C.P.C. itself prescribes the limitation.
36. Under these cricumstances, this Court holds that the order passed by the learned Additional District Judge, Madanapalle is perfectly legal but not only for the reason assigned by him but for the reason assigned by this Court also. Therefore, this Court dismisses the Civil Revision Petition with a direction to the Executing Court to comply with the order of this Court keeping in view the provisions contained under Order 21 Rule 89 C.P.C. and under Order 21 Rule 92(2) C.P.C. There is no order as to costs of this Revision.