Gopalaswamy Kounder and Etc. Vs. Ramaswamy Kounder and ors. - Court Judgment

Excerpt:
- - the decree to be satisfied in o. p2 valuation certificate also indicates that the six items of properties are lying within well defined boundaries and are severable from each other. if the property is large and the decree to be satisfied is small, the court must bring to sale only such property the proceedings of which would be sufficient to satisfy the claim of the decree-holder. gopalan nair 1960 klt 546 :air 1960 ker 367 that a minor can avoid a decree or order on the ground of gross negligence of the guardian or next friend without proof or inference of fraud or collusion, may not be good law after the ruling of the apex court in asharfi lal v.orderv. ramkumar, j.1. the common petitioner in the two civil revision petitions is a minor by name muthuraj represented by his next friend gopalaswami rounder and the common petitioner in the two writ petitions is the said gopalaswami rounder who sought permission to act as the next friend of the minor, o.s. nos. 630/97 and 172/98 on the file of the munsiff s court, chittur were two money suits instituted by respondents 1 to 5 herein against one nataraja rounder, who was the paternal grandfather of the said minor, muthuraj. the said suits were for realisation of money and were decreed against the said nataraja rounder. in execution of the decrees, six items of immovable properties having an extent of about nine acres belonging to the said nataraja rounder were sold in court auction and.....

Judgment:
ORDER

V. Ramkumar, J.

1. The common petitioner in the two Civil Revision Petitions is a minor by name Muthuraj represented by his next friend Gopalaswami Rounder and the common petitioner in the two writ petitions is the said Gopalaswami Rounder who sought permission to act as the next friend of the minor, O.S. Nos. 630/97 and 172/98 on the file of the Munsiff s Court, Chittur were two money suits instituted by respondents 1 to 5 herein against one Nataraja Rounder, who was the paternal grandfather of the said minor, Muthuraj. The said suits were for realisation of money and were decreed against the said Nataraja Rounder. In execution of the decrees, six items of immovable properties having an extent of about nine acres belonging to the said Nataraja Rounder were sold in Court auction and purchased by the 6th respondent herein namely E.R. Ajoy who is a stranger. W.P. (C) 34847/2005 is filed challenging Ext. P8 order dated 11-11-2005 in E.A. 593/05 in E.P. 376/05 in O.S. 630/97 whereunder the permission sought to appoint Gopalaswami Rounder as the next friend of the minor was refused. In C.R.P. 1179/05, what is impugned in the order dated 11-11-2005 in E.A. 593/05 in E.P. 376/2000 in O.S. 630/97 whereunder the petition filed by the minor through his next friend under Order 21, Rule 90 read with Section 151, CPC challenging the Court auction sale has been dismissed holding that the minor has no locus stand! to file the petition in view of the order passed in E.A. 593/2005. In W.P.C. 34848/05 the order impugned is Ext. P8 dated 11-11-2005 in E.A. 595/05 in E.P. 465/01 in O.S. 172/98 whereunder permission to appoint Gopalaswami Rounder as the next friend of the minor has been declined. In C.R.P. 1180/ 05 the order impugned is the order dated 11-11-2005 in E.A. 594/05 in E.P. 465/05 in O.S. 172/98 whereunder the Court below has dismissed E.A. 594/05 filed under Order 21, Rule 90 read with Section 151, CPC on the ground that in view of the order passed in E.A. 595/05 the minor has no locus standi to file the petition.

2. I heard Advocate Sri. Sathish Nainan, the learned Counsel appearing for the petitioners in both the civil revision petitions and the writ petitions and Adv. Sri. Philip T. Varghese, the learned Counsel appearing for the 6th respondent, auction purchaser.

3. Advocate Sri Philip T. Varghese, the learned Counsel appearing for the auction purchaser made the following submissions before me in support of the impugned orders :-

Muthuraj, the minor is only one of the legal representatives of the original defendant/judgment debtor. This minor was im-pleaded only in the execution proceedings. His mother was appointed as his guardian in the execution proceedings in which the minor was one of the respondents. The decree passed in both the suits were money decrees and the properties were brought to sale on 5-5 2004 and thereafter adjourned to 25-10-2004 for want of bidders on both auctions. Ultimately in the Court auction sale conducted on 27-6-2005 the 6th respondent E.R. Ajoy was the highest bidder. On 1-9-2005 the minor's mother Selvi had filed E.A. 508/05 under Order 21, Rule 89 CPC and E.A. 509/2005 to record full satisfaction of the decree in O.S. 630/97 by depositing the entire amount. Since the said application challenging the Court auction sale was filed out of time, mother had filed E.A. 507/2005 to condone the delay in filing E.A. 508/2005. Likewise, the mother had filed similar petitions in O.S. 172/98 also after depositing the entire amount. All those petitions were dismissed by the executing Court. It is thereafter that on 25-10-2005 the minor represented by a total stranger by name Gopalaswami Rounder filed the present applications under Order 21, Rule 90, CPC alleging that the Court auction sale was vitiated by fraud and material irregularity. Since the mother of the minor had already been appointed as the guardian of the minor in the execution proceedings, a stranger could not have come forward seeking his appointment as the next friend of the minor. The application under Order 21, Rule 90, CPC is not an independent proceeding but a continuation of the execution proceeding and therefore, as long as the mother's guardianship continues and she has not been removed from guardianship, she alone could represent the minor as his guardian even if the minor is an applicant. The position does not change merely because the minor has attributed negligence on the part of his mother in defending the execution proceeding. All the six items of properties are lying contiguously as a single plot and there were other encumbrances and liabilities over the properties and therefore the amount fetched in the Court auction sale cannot be said to be unconscionably low.

4. I am afraid that I cannot agree with the above submissions advanced on behalf of the Court auction purchaser.

5. The sequence of events leading to the impugned orders can be summarised as follows :- O.S. Nos. 630/97 and 172/98 on the file of the Munsiff s Court, Chittur were two money suits filed by the very same plaintiffs against one Nataraja Rounder who was the paternal grandfather of Muthuraj, the minor. In O.S. 630/97 the amount claimed and decreed was Rs. 39,159/- with 12% interest thereon and costs. In O.S. 172/98 the amount claimed and decreed was Rs. 49,310/- with 12% interest and costs. Pending the suit, Nataraja Rounder died and his widow and three children including one Palaniswami Rounder (father of Muthuraj, the minor) were impleaded as his legal representatives. Both the suits were decreed. In O.S. 630/97 E.P. 376/2000 was filed for realisation of Rs. 59,688/- including costs by attachment and sale of six items of properties having a total extent of about 9 acres. In O.S. 172/98 E.P. 465/2001 was filed for realisation of Rs. 78,292/including costs and the very same properties were brought to sale. Pending the aforesaid Execution Petitions, Palanisami Rounder died and his widow Selvi and minor son Muturaj were impleaded as his legal representatives. The sale proclamation in O.S. 630/97 showed the value of the aforesaid properties as Rs. 82,500/- and the sale proclamation in O.S. 172/98 showed the value of the very same properties as 1,00,648/-. The sale was adjourned twice not on account of the fact that there were no bidders but due to the fact that there was stay of sale in some other proceedings. In O.S. 630/97 the properties were sold for Rs. 1,65,000/-. In O.S. 172/ 98 the properties were sold for Rupees 1,55,000/-. In both the Court auction sales the 6th respondent, namely, E.R. Ajoy purchased the properties. What remains in the execution is the confirmation of sale and delivery of properties. On 1-9-2005, Salvi the mother of Muthuraj filed E.A. 508/2005 in E.P. 376/00 in O.S. 630/97 under Order 21, Rule 89 for setting aside the sale by depositing the entire auction amount including poundage etc. As the said application was filed out of time she also filed E.A. 507/05 for condoning the delay in filing the petition under Order 21, Rule 89, CPC Selvi had also filed E.A. 509/00 to record full satisfaction of the decree in O.S. 630/97. Likewise, Selvi had filed E.A. 503/05 in E.P. 465/05 in O.S. 172/98 under Order 21, Rule 89, CPC for setting aside the sale by depositing the entire auction amount including poundage etc. Since that application was also out of time she had filed E.A. 502/05 to condone the delay. She also filed E.A. 504/2005 to record full satisfaction of the decree in O.S. 172/98. As Section 5 of the Limitation Act is not applicable to proceedings in execution, the petitions to condone the delay filed by Selvi were dismissed and consequently E.A. Nos. 508/05 and 503/ 05 filed by her in the two suits were dismissed as time-barred without any adjudication. On 25-10-2005 Muthuraj, the minor represented by Next friend Gopalaswami Rounder filed E.A. 592/05 in E.P. 376/00 in O.S. 630/97 under Order 21, Rule 90, CPC for setting aside the sale on the ground of material irregularity and fraud. E.A. 593/ 2000 was filed by his next friend seeking permission to appoint him as the next friend of the minor. Similarly, the minor filed E.A. 594/05 in E.P. 464/01 in O.S. 172/98 under Order 21, Rule 90, CPC, for setting aside the Court sale. E.A. 595/05 was the application filed by his next friend seeking permission to appoint him as the next friend of the minor. The main ground of attack in the petitions filed under Order 21, Rule 90, CPC was regarding violation of Rules 64 and 66 of Order XXI, CPC since according to the petitioner there was absolutely no need or necessity to sell all the six items of immovable properties admeasuring about 9 acres for realisation of the relatively paltry amount decreed in the two suits and that the sale also was for a shockingly low price of Rs. 1,65,000/- in O.S. 630/97 and Rs. 1,55,000/- in O.S. 172/1998 as against the valuation certificate obtained by the Executing Court from the Tahsildar showing that the properties were worth about Rs. 25,00,000/-. The executing Court as per separate orders dated 11-11-2005 dismissed E.A. Nos. 593/05 and 595/05 in the execution proceedings in O.S. Nos. 630/97 and 172/98 respectively filed by Gopalaswami Kounder seeking permission to act as a next friend of the minor. Consequently that Court on the same day dismissed the applications filed by the minor under Order XXI, Rule 90 read with Section 151, CPC holding that the minor has no locus standi to file the said applications in view of the dismissal of the petitions filed by Gopalaswamy Kounder seeking permission to appoint him as the next friend of the minor. These orders are under challenge in these revisions petitions and writ petitions.

6. Coming to the merits of the case, there is no dispute that the six items of properties are having a total extent of approximately 9 acres and situated in Chittur Taluk of Palakkad District. Ext. P2 in the two writ petitions is the letter dt. 18-9-2003 from the Tahsildar, Chittur, addressed to the Munsiff s Court. Chittur, in reply to a letter from the learned Munsiff requesting the Tahsildar to furnish a valuation of the six items of properties brought for sale in this case. A computation of the total value of all the six items of properties adopting the centage value for each item given in Ext. P2 letter of the Tahsildar will show that the properties are worth about Rs. 25 lakhs. But they were sold for a shockingly low price of Rs. 1,65,000/- in O.S. 630/97 and Rs. 1,55,000/- in O.S. 172/98. The upset price was also fixed as very low at Rs. 1.5 lakhs for about 9 across of property. The decree to be satisfied in O.S. No. 630/97 was only Rs. 59,688/- and in O.S. 172/98 was only Rs. 78,292/-. But the properties which were put up for sale were six items of properties extending to about 9 acres.

7. Apart from the very description of the properties and their boundaries in the E.P. and proclamation schedule, Ext. P2 valuation certificate also indicates that the six items of properties are lying within well defined boundaries and are severable from each other. Even if the property is lying as a single compact plot it does not in any manner lessen the legal obligation of the Court as we will presently see. In all execution proceedings, the Court has to first decide whether it is necessary to bring the whole of the attached property to sale or whether such portion thereof as may be necessary to satisfy the decree would alone be sufficient. If the property is large and the decree to be satisfied is small, the Court must bring to sale only such property the proceedings of which would be sufficient to satisfy the claim of the decree-holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provision of law, only such portion of the property should be sold. The choice regarding the specificity of the property to be sold is not one within the pure discretion of the Court, but is an obligation imposed on the Court. Care must, therefore, be taken to put up only such portion of the property for sale as would meet the claim made in the execution petition. A Court sale held without considering this aspect of the matter will not be one in conformity with the requirement of law and would be considered as illegal and without jurisdiction. Ambati Narasayya v. M. Subbarao : AIR1990SC119 . This is a mandatory requirement under Order 21, Rule 64 and Order 21, Rule 66(2)(a) read with Form 27 of Appendix E to the Code of Civil Procedure (see also M/s. Shalimar Cinema v. Basin Film Corporation, : AIR1987SC2081 ; Ambati Narasayya v. M. Subbarao : AIR1990SC119 ; Desh Bhandu Gupta v. N. L. Anand and Rajinder Singh : (1994)1SCC131 and Lalchand v. VIII Addl. District Judge, : [1997]2SCR346 . Since it is a mandatory duty of the executing Court to comply with the above provision, any omission on the part of the judgment-debtor to raise a plea in that be-half in response to the notice under Order XXI, Rule 66, CPC will not be a bar under Order XXI, Rule 90(3), CPC precluding him from raising that contention (see Ghan Das v. Paulin Moraes 1998 (2) KLT 88). The aforementioned decisions also show that gross under valuation of the property will constitute material irregularity within the meaning of 0.21, Rule 90, CPC. The executing Court was, therefore, not justified in dismissing the applications filed by the minor under Order 21, Rule 90, CPC without an adjudication of the question.

8. No doubt, the dismissal of the minor's applications under Order XXI, Rule 90, CPC without an adjudication on merits was for the reason that in view of the dismissal of the application by the next friend for permission to act as the next friend of the minor, the minor had no locus standi to maintain the petitions under Order XXI, Rule 90, CPC. It is interestingly curious to note that the next friend filed a petition for permission of the Court to act as the next friend of minor Muthuraj. It is alarmingly strange that the executing Court thought it fit to dismiss the said application. Law does not contemplate the appointment of a next friend for a minor who institutes a legal proceeding either as a plaintiff or as a petitioner. The object of a minor being represented through a next friend is only for the purpose of enabling the opposite party to look upon the next friend for costs, if any, ordered against the minor (vide Amar Chand v. Nem Chand AIR 1942 All 150, Kaliammal v. Ramaswamy Goundan AIR 1949 Mad 859, Akku Amma v. Kunhi Raman Nair 1963 KLJ 39 and K. Kumar v. Onkar Nath AIR 1972 All 81). In the case of a minor the appointment of a guardian ad litem by the Court is envisaged only when the minor figures as a respondent or defendant. Where the minor institutes a proceeding as a plaintiff or applicant, any person who does not have any interest adverse to that of the minor can figure as his next friend. The mere fact that the minor's mother Selvi was appointed as the guardian of the minor in execution proceedings where the minor was impleaded as an additional respondent, will not disable Gopalaswamy Rounder from styling himself as the next friend of the minor for the purpose of filing the petitions under Order 21, Rule 90, CPC. There was absolutely no necessity for the next friend to seek his appointment as the next friend nor was the Court below justified in dismissing the said application. Even in a case where the proceedings are instituted by the minor through his next friend, the real plaintiff or applicant is the minor himself and not the next friend (see Abdul Hameed v. Abdulla 1989 (2) KLT SN 72 Case No. 75). If a minor files a suit or petition without a next friend, even though Order 32, Rule 2 entitles the Court to pass an order that the plaintiff or petition be taken off the file, the Court may also give an opportunity to the minor to cure the defect (see Ahammed Pillai v. Subaida Beevi 1985 KLT 845). It is pertinent to note in this connection that Selvi, the mother of the minor was acting as an imprudent and irresponsible guardian in safeguarding his interests. Even the executing Court has in paragraph 3 of Ext. P8 order has observed that on going through the proceedings in this case it is seen that there has been laches and negligence on the part of the guardian (mother) of the minor. Eventhough the decision of a Division Bench of this Court in Narayanan Namboothiripad v. Gopalan Nair 1960 KLT 546 : AIR 1960 Ker 367 that a minor can avoid a decree or order on the ground of gross negligence of the guardian or next friend without proof or inference of fraud or collusion, may not be good law after the ruling of the Apex Court in Asharfi Lal v. Koili AIR 1995 SC 1440, the minor can certainly institute independent proceedings in Court to get the order or decree set aside on the ground of gross negligence of the next friend or guardian and the distinction between negligence and gross negligence is illusive. (Vide Talluri Ventaka Seshayya v. Thadikonta Kotiswara Rao AIR 1937 PC 1). Hence the dismissal of the petitions filed by the minor under Order 21, Rule 90 CPC on the ground that he has no locus standi to file the said petitions is also unsustainable.

9. The result of the foregoing discussion is that the impugned orders passed by the Court below are unsustainable and are liable to be set aside. Accordingly Exts. P8 orders in both the writ petitions are set aside. E.A. Nos. 593/05 and 595/05 filed by Gopalaswami Rounder seeking permission of the Court to appoint him as the next friend of the minor will stand dismissed as unnecessary. The orders impugned in both the civil revision petitions are set aside and the petitions filed by the minor under Order 21, Rule 90, CPC will stand remitted to the Court below for disposal afresh on merits in accordance with law and in the light of the observations hereinabove contained. Parties shall appear before the Court below without any further notice on 6-2-2006.

10. After the pronouncement of this judgment Adv. Sri. P. B. Krishnan appearing for the decree holder submitted that the decree holder got summons in the case only after the matter was taken up for judgment. He further submitted that both sides have deposited the amount due to the decree-holder in the Court below and that in the fight between the auction purchaser and the judgment-debtors the money due to the decree-holder may not be denied to him and he may be permitted to appropriate one set of deposit already before Court. This submission appears to be reasonable having regard to the fact that the decree-holder is not a contesting party to the present dispute. The decree-holder may, therefore, make an application to the executing Court for disbursement of one set of deposit money and the executing Court shall pass appropriate orders on such application which need not await the final result of the present dispute.