Madras High Court
Murugesan & Company vs Vijayalakshmi on 29 April, 2002
Author: V.Kanagaraj
Bench: V.Kanagaraj
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29/04/2002
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
CIVIL MISCELLANEOUS APPEAL NO.1056 OF 2000 and C.M.A.NO. 191 OF 2001
AND
CIVIL REVISION PETITION NO.2589 OF 2001
AND C.M.P.NOS.2972 OF 2001 AND 13754 OF 2001.
C.M.A.NO.1056 OF 2000:
Murugesan & Company
rep.by its Partner
Nagarathinam ... Appellant
Vs.
1.Vijayalakshmi
2.N.Balasubramaniyan
3.Vijayarani
4.Kalaiselvi
5.Karpagavalli
6.Chellammal
7.R.Balakrishnan ... Respondents
C.M.A.NO.191 OF 2001:
R.Balakrishnan ... Appellant
Vs.
1.Vijayalakshmi
2.N.Balasubramanian
3.Vijaya Rani
4.Kalaiselvi
5.Karpagavalli
6.Chellammal
7.Murugesan & Company
rep.by its Partner
Nagarathinam,
Cotton Market,
Rajapalayam ... Respondents
C.R.P.NO.2589 OF 2001:
1.Tmt.Vijayalakshmi
2.Balasubramaniam
3.Tmt.Vijayarani
4.Kalaiselvi
5.Karpagavalli
6.Tmt.Chellammal ... Petitioners
Vs.
1.M/s.Murugesan and Co.,
rep.by its Share Holder
Nagarathinam,
1040, Cotton Market,
Rajapalayam
2.R.Balakrishnan ... Respondents
!For petitioner in
CMA.1056/2000, for
R.7 in CMA.191/2001
and R.1 in CRP.
2589/2001 : Mr.Parthasarathy for
Sarvabhauman Associates
^For respondents 1 to 6
in CMAs.1056/2000 &
CMA.191/2001 and for
the petitioners in
CRP.2589/2001 : M/s.B.S.Gnanadesikan and
Vanathi Srinivasan
For R.7 in C.M.A.
No.1056/2000, for
the appellant in
CMA.191/2001 and
for R.2 in
CRP.2589/2001 : Mr.N.Damodaran
C.M.A.Nos.1056 of 2000 and 191 of 2001 are directed against the fair
and decretal order dated 12.4.2000 made in E.A.No.324 of 1998 in E. P.No.82
of 1997 in O.S.No.175 of 1988 by the Court of Principal Subordinate Judge,
Dindigul.
C.R.P.No.2589 of 2001 is directed against the fair and decretal order
dated 12.4.2000 made in E.A.No.39 of 1999 in E.P.No.82 of 1997 in O.S.No.175
of 1988 by the Court of Principal Subordinate Judge, Dindigul.
:COMMON ORDER
Both the above Civil Miscellaneous Appeals and the Civil Revision Petition are directed against the fair and decretal orders both dated 12.4.2000, while the C.M.A.No.1056 of 2000 and C.M.A.No.191 of 2001 are preferred against the fair and decretal order made in E.A.No.324 of 1998, the C.R.P.No.2589 of 2001 is filed against the fair and decretal order made in E.A.No.39 of 1999, in one and the same E.P.No.82 of 1997 in O.S.No.175 of 1988 by the Court of Principal Subordinate Judge, Dindigul.
2. For the sake of easy reference and convenience, the parties are hereinafter referred to as they are arrayed in C.M.A.No.1056 of 2000.
3. Tracing the history of the coming into being of all the above matters, it comes to be known that the appellant in C.M.A.No.1056 of 20 00 viz. Murugesan and Company had filed the suit in O.S.No.175 of 198 8 against the respondents 1 to 6 for recovery of a sum of Rs.3,88,756 .01 with interest at 18% p.a. from the date of plaint till the date of realisation and the said suit having been decreed ex-parte, the plaintiff therein had filed an execution petition in E.P.No.82 of 1997 for recovery of Rs.9,79,235.30 with subsequent interest praying the Court to sell the schedule mentioned properties therein and the executing Court, after complying with all the formalities, conducted the sale of the first two items of properties mentioned in the schedule, since they themselves became sufficient, on 7.10.1998 wherein 7th respondent by name R.Balarkishnan became the highest bidder, bid amount being Rs.7,01,100/= and Rs.4,00,500/= respectively for items 1 and 2. Thereon, the defendants/judgment debtors have filed an application under Order 21 Rule 90 and Section 151 CPC i n E.A.No.324 of 1998 to set aside the sale and the Court below would conduct an enquiry wherein on behalf of the petitioners/judgment debtors, the sixth judgment debtor viz. Chellammal would examine herself as P.W.1 for oral evidence with no documents marked for documentary evidence. Likewise, on behalf of the respondents, the auction purchaser would examine himself for oral evidence as R.W.1 and would mark two documents as Exs.R.1 and R.2. In consideration of all the above evidence placed on record, the Court below would allow the said application holding that there were lot of irregularities in the conduct of the auction including the fixing of value of the properties. Aggrieved, the decree holder and the auction purchaser have respectively come forward to prefer the C.M.A.Nos.1056 of 2000 and 191 of 2001 on certain grounds as brought forth in the grounds of appeals.
4. So far as the coming into being of C.R.P.No.2189 of 2001 is concerned, it comes to be known that the petitioners in this revision petition who are the judgment debtors filed an application under Order 2 6 Rule 18-A r/w.Section 151 C.P.C. in E.A.No.39 of 1999 before the Court below praying the Court to appoint a Technical Person as Commissioner to inspect the suit properties and to file a report and the Court below would conduct an enquiry wherein on behalf of the petitioners/judgment debtors, the sixth petitioner viz. Chellammal besides examining herself as P.W.1 for oral evidence would also examine three witnesses as P.Ws.2 to 4 and would mark nine documents for documentary evidence as Exs.P.1 to P.9. On the contrary, on behalf of the respondent, the auction purchaser would examine himself for oral evidence as R.W.1 and would mark the delivery order dated 2.2.2000 in E.A.No.40/2 000 in E.P.No.84/1997 in O.S.No.174 of 1988. Since the said application having come to be dismissed by the Court below on grounds that items 3 and 4 of the suit properties which were not the subject matters of auction proceedings were also included in the application; that since the petitioners were set ex-parte, they cannot file the application; that since the application to set aside the sale was allowed, the petitioners got an opportunity to correctly assess the value, the defendants/judgments debtors have come forward to file the above civil revision petition on certain grounds as brought forth in the grounds of revision.
5. At the outset, taking up both the Civil Miscellaneous Appeals, the learned counsel appearing on behalf of the decree holder would submit that the appeal in C.M.A.No.1056 of 2000 is against the order setting aside the Court auction sale and the main argument in the order is the valuation; that according to the judgment debtors, the property was not properly valued, the description was not correct, that more properties have been given in the execution petition than it was required to specify the decree amount etc.
6. Citing Order 21 Rule 90 of the C.P.C., the learned counsel would submit that the otherside wants all the auction proceedings to be quashed; that the order has become final; that the other side did not challenge the order dated 7.10.1998; that the recovery is Rs.9,35,000/=; that Item No.1 has been sold for a sum of Rs.7,01,000/= and Item No.2 has been sold for a sum of Rs.4,00,500/=. At this juncture, the learned counsel would cite a judgment of the Apex Court delivered in R.P.A.VALLIAMMAL vs. R.PALANICHAMI NADAR AND OTHERS reported in 1997(II) CTC 235 wherein it is held that `the oppor tunity to object to executability of the decree could be taken only once and repeated applications are not tenable and once the order has become final, the petitioner cannot reagitate the issue by filing subsequent application.'
7. Citing the above judgment, the learned counsel would exhort that the above judgment upholds the case of the decree holder that no opportunity need be given repeatedly which is unwarranted.
8. On the part of the learned counsel appearing on behalf of the auction purchaser, besides adopting the above arguments advanced on the part of the decree holder regarding the Civil Miscellaneous Appeals, he would depricate the accusation of the judgment debtors that both the decree holder and the auction purchaser have acted in collusion with each other; that on 14.10.1998, the auction purchaser deposited a sum of Rs.11,01,000/= and again a further sum of Rs.77,150/=. On his part, he would cite a judgment of the Division Bench of this Court delivered in SRI RAMAJEYAM LORRY AGENCY REP. BY ITS PROPRIETOR A. RAGHU, 17, NADAMUNI ROAD, VILLIVAKKAM, MADRAS vs. V.B.GIRI AND 13 OTHERS reported in 1998-3-L.W.465. In this judgment, the Division Bench of this Court would rely on a judgment of the Apex Court delivered in M/ s.MOTOR & INVESTMENTS LIMITED vs. THE NEW BANK OF INDIA AND OTHERS reported in (1996) 4 SCC 272 = 1997-2-L.W.543 for the proposition that `when the court was inclined to bring the property to sale, the endeavour of the court should be to sustain the court sale and equally, though court sale is compulsive sale, equal endeavour should be made to fetch adequate price'. Relying on the said Apex Court judgment, the Division Bench of this Court (in 1998-3-L.W.465) held:
"...mere inadequacy of price, without the least impropriety in the conduct of the auction sale, is no ground to set aside the sale .... No purchase made bona fide and without fraud or unfair dealing of any interest in the property should thereafter be opened or set aside merely on the ground of under-valuation. The inadequacy of price should shock the conscience of the court and the court should opine coupled with other circumstances of oppression and unfairness, in which event, inadequacy of the price assumes relevance to reopen the auction...."
9. In reply, regarding the Civil Miscellaneous Appeals, the learned counsel for the judgment debtors would submit that the Court has acted consciously and judicially and not mechanically. Citing Order 21 Rule 90 (1) of the CPC., which contemplates that `where any immovable property has been sold in execution of a decree, the decreeholder 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', the learned counsel would point out that Order 21 Rule 90(3) CPC is not applicable to the case in hand.
10. The learned counsel would then read out para No.31 of the order dated 12.4.2000 made in E.A.No.324 of 1998 in E.P.No.82 of 1997 in O.S.No.175 of 1988 wherein the Court below would point out that so far as the first item of the properties is concerned, it has not at all been mentioned as to what are all the machineries for the sale proclamation and even in the attachment before judgment made on 23.9.1989 in I.A.No.386 of 1988 in O.S.No.175 of 1988, only four items of properties are shown to have been attached, but in Item No.1 of properties what are the machineries concerned has not at all been specified; that only in a generalised form, it has been stated therein as ` machineries in Items No.1 to 4'.
11. Then, reading out from Para No.32 of the order of the Court below, the learned counsel would point out that the Court below has particularly dealt with the anomalies in fixing the value of the first four items having been given generally as Rs.12 lakhs wherein in E.P. As on 14.7.1997, the first item has been given for a sum of Rs.1 lakhs, subject to encumbrance, for which there is no explanation.
12. Again pointing out from para No.34 of the order of the Court below wherein the lower Court has fittingly dealt with regarding the lapses of the Court of execution which would only go to prove the lapses and fraud, the learned counsel would submit that the Court below has rightly held that the price declared in the sale proclamation cannot be accepted as correct figures and it is only erroneous. The learned counsel would further submit that it is pointed out therein even on the part of the auction purchaser regarding the first item of the properties that over and above the upset price of Rs.7 lakhs, only a meagre amount of Rs.1,100/= had been added and it would appear to be artificial and not depicting the actual value of the first item of the properties optioned.
13. The learned counsel would also point out from paragraph No.35 of the lower Court order to the effect that the properties which were valued at Rs.12 lakhs in the year 1989 by the same decree holder in the execution petition, all the four items of the properties have been valued at Rs.1,70,000/= including encumbrances is not at all reliable which is nothing short of a fraud and gross irregularity committed on the part of the decree holder. It would also be pointed out therein that even in the year 1999, the Court Amin at the time that the properties were attached before judgment, had valued the first Item for Rs.4 lakhs, the second item for Rs.2 lakhs, the third item for Rs.1 lakh and the fourth item for Rs.8 lakhs, thus for a total sum of Rs.1 5 lakhs and while so, under-valuation of the property, as shown in the Execution Petition, has absolutely no nexus to the actual price since the value of the decree holder was not commensurate to the actual value of the properties; that on the contrary the petitioners value is Rs.2½ crores. Therefore, the learned counsel would point out that it is not only unreasonable but also unconscionable and hence the lower Court has rightly held that it was grossly irregular and fraudulent so as to incur a terrible and irreparable loss to the owner of the property, the judgment debtors, as it has been concluded in para No.37 of the lower Court's order. On such arguments, the learned counsel for the judgment debtors would pray to dismiss both the Civil Miscellaneous Appeals preferred by the decree holder and the auction purchaser.
14. Regarding the Civil Revision Petition No.2589 of 2001, the learned counsel for the petitioners therein, who are the judgment debtors, would submit that the value of the property on the date of auction was Rs.2,90,00,000/= and therefore unless the property is valued properly, the judgment debtors would be put to heavy loss. At this juncture, the learned counsel would cite a judgment of the Division Bench of the Calcutta High Court delivered in SISIR KUMAR MUKHERJEE AND OTHERS vs. KANYALAL JHEWAR AND OTHERS reported in A.I.R. 1971 Calcutta 87 wherein it has been held:
"Where a property worth at least Rs.60,000/= was valued by the decree-holder in his execution petition at Rs.6,000/= which was further reduced to Rs.1,500/= in the sale proclamation, it would be a case where the decree-holder would be guilty of deliberately putting a shockingly low valuation for the disputed property in the proclamation for sale which would amount to fraud on court and would vitiate the sale apart fro the question of any other material irregularity in the publishing or conducting of the sale. The case being one of fraud on court, it would vitiate the proceedings apart from or irrespective of any question under Sec.18 Limitation Act, and even for purposes of Section 18, fraud on the part of the decree-holder would be enough and it would not be necessary for attracting the same to establish fraud on the part of the auction purchaser."
15. The learned counsel for the judgment debtors would further cite a judgment delivered in P.SOMASUNDARAM vs. A.PONNUSAMY AND OTHERS reported in A.I.R.1992 Madras 71 wherein in a case where the decreeholder obtained two decrees against same person and proceedings were initiated against same properties in both executions and when there was great disparity between the value stated by decree-holder and Amin' s valuation, the learned single Judge of this Court has held that ` the objection of the judgment-debtors that sale of one of the lot of properties would satisfy both decree could be taken even after settlement of proclamation.'
16. The learned counsel would then cite a judgment of the Apex Court delivered in RAGHUNATH PRADHANI vs. DAMODRA MAHAPATRA AND OTHERS reported in A.I.R. 1978 S.C. 1820 wherein it has been held:
"The failure, therefore, of the judgment-debtor to raise any particular contention cannot operate as res judicata, actually or constructively either against him or against the appellant (purchaser under private sale)"
17. Citing the above judgments, the learned counsel for the judgment debtors would point out that all the four properties were related items connected to a ginning factory out of which Items No.1 and 2 are valuable properties, but without showing the machineries, in a fraudulent manner, the auction sale had been conducted in connivance with each other. The learned counsel would then point out that under Order 21 Rule 90(3), it is not a discretion but an obligation rather a duty that is cast upon the Court. At this juncture, the learned counsel would cite a judgment of the Apex Court delivered in TAKKASEELA PEDDA SUBBA REDDI vs. PUJAI PADMAVATHAMMA AND OTHERS reported in A.I.R. 1977 S.C. 1789 wherein it has been held:
"Under the provisions of O.21, Rule 64, it is manifest that where the amount specified in the proclamation of sale for the recovery of which the sale was ordered is realised by sale of certain items, the sale of further items should be stopped. This is the logical corollary which flows from O.21, R.64. Under that provision, the Executive Court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied. The words "necessary to satisfy the decree" clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. In other words, where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree,no further sale should be held and the Court should stop at that stage."
18. For irregularity and fraud committed on the part of the decree holder, the learned counsel for the judgment debtor would cite very many passages from the order of the lower Court and would exhort that it is not the question of description but it is an act of fraud committed on the Court by suppression of facts and creating disparities in valuation in a deliberate manner; that it is a case wherein by his own conduct, the decree holder proved the fraud committed on the Court, himself valuing the property at Rs.12 lakhs in the year 1989 and deliberately valuing the same at Rs.1 lakh afterwards; that the auction purchaser cannot claim any right over and above the substantial right of the owner of the property. On such arguments, the learned counsel for the judgment debtors would pray to allow the above Civil Revision Petition setting aside the order of the Court below.
19. On the contrary, the learned counsel for the decree holder would cite a judgment of this Court delivered in A.PARVATHAM vs. BANK OF BARODA, REPRESENTED BY ITS BRANCH MANAGER, TIRUPPUR AND 4 OTHERS reported in 2001(1) CTC 67 wherein in a case of judgment debtor failing to raise objections regarding terms of sale proclamation and allowing the sale to be completed without objection in regard to description of property, relying on very many earlier legal propositions on the subject, the learned single Judge of this Court has held that `Rule 90 (3) prohibits judgment debtor from raising plea of material irregularity or fraud if she had failed to raise same at the time of drawing of proclamation and judgment debtor could not assail sale as she had failed to raise such objections at time of drawing of sale proclamations.'
20. The learned counsel for the decree holder would further rely on a judgment of the Apex Court delivered in KADIYALA RAMA RAO vs. GUTALA KAHNA RAO (DEAD) BY LRS. AND OTHERS reported in (2000) 3 SCC 87 wherein in a case where the challenge to the auction-sale was on the ground that the judgment-debtor had no saleable interest, the Apex Court has held:
"On a plain reading of Order 21 Rule 90 CPC, three factors emerge and which ought to be taken note of in the matter of setting aside the sale of an immovable property, viz.:
(i)material irregularity and fraud in publishing or conducting the sale;
(ii)the court dealing with such an application is satisfied that the applicant has sustained substantial injury by reason of such an irregularity or fraud; and
(iii)no application would be entertained upon a ground which the applicant could have taken on or before the date of drawing up of the proclamation of sale.
The third requirement deserves special mention by reason of the factum of incorporation of the principles analogous to the doctrine of constructive res judicata as envisaged under Section 11 CPC. The legislative intent is clear and categorical in both the provisions that in the event of an intentional relinquishment of a known right, question of proceeding further would not arise."
21. The learned counsel reading Order 21 Rule 90(3) would ultimately end up saying that even regarding the value, the judgment debtors themselves have purchased the property only for a sum of Rs.95,000/= in the year 1979 and would cite from the evidence of P.W.1 to the effect that he did not see the purchase of the property in auction. On such arguments, the learned counsel for the decree holder would pray to allow both the above Civil Miscellaneous Appeals filed by the decree holder and the auction purchaser and to dismiss the Civil Revision Petition filed by the judgment debtors.
22.In consideration of the facts and circumstances as pleaded by parties, having regard to the materials placed on record and upon hearing the learned counsel for both, what comes to be known is that two applications have been filed by the judgment debtors before the Court of execution in E.P.No.82 of 1997, the first one under Order 21 Rule 90 and Section 151 CPC in E.A.No.324 of 1998 praying to set aside the sale and the second application under Order 26 Rule 18-A r/w. Section 151 CPC in E.A.No.39 of 1999 before the Court below praying the Court to appoint a Technical Person as Commissioner to inspect the suit properties and also file a report. The Court below while allowing the first application, has dismissed the second application for appointment of a technical person as the commissioner to inspect the suit properties and to file a report. Aggrieved, against the decision of the lower Court in allowing the first application, not only the decree holder but also the auction purchaser have come forward to prefer the above Civil Miscellaneous Appeals and aggrieved against the dismissal of the second application for appointment of the technical person as the commissioner to inspect the suit property and file the report, the judgment debtors have come forward to file the above Civil Revision Petition.
23. The main contention of the appellants in both the Civil Miscellaneous Appeals is that the auction sale once held cannot be set aside by a later application and it should have been testified during the process of sale and not after the sale is over on an independent later application. Many judgments, as afore-extracted, would be cited in favour of this principle wherein all, in one language or other, the upper forums of law have held that the opportunity to object to executability of the decree could be taken only once and repeated applications are not tenable and once the order has become final, the petitioner cannot reagitate the issue by filing subsequent application.
24. But, however, in the judgment delivered in M/s.MOTOR & INVESTMENTS LIMITED vs. THE NEW BANK OF INDIA AND OTHERS reported in (199 6) 4 SCC 272 wherein the Apex Court would give clarity to this proposition stating that when the Court was inclined to bring the property to sale, the endeavour of the court should be to sustain the court sale and equally, though court sale is compulsive sale, equal endeavour should be made to fetch adequate price.
25. Based on this judgment of the Apex Court, the Division Bench of this Court in a judgment reported in 1998-3-L.W.465 has held that ` the inadequacy of the price should shock the conscience of the court and the Court should opine coupled with other circumstances of oppression and unfairness in which event, inadequacy of the price assumes relevance to reopen the auction.' Therefore, based on such proposition as laid down by the Division Bench of this Court following the source from the Apex Court, it would be argued on the part of the learned counsel appearing on behalf of the auction purchaser that it is a case that would only fall under Order 21 Rule 90(1) CPC and not under Order 21 Rule 90(3) CPC.
26. It has been very clearly established under Order 21 Rule 90(1) CPC that `where any immovable property has been sold in execution of a decree,the decree-holder, or the purchaser, or any other person ... whose interests are affected by the apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.' On facts, it is the case of the judgment debtor that the properties are worth Rs.2½ crores but the decree holder, even though in the petition filed for attachment before judgment, has shown the value of the first four items as Rs.12 lakhs, very ordinarily and forgetting the fact that he is furnishing the facts and figures on the same property before the Court of law and with scant regard, has given the value of the first item of the property in the E.P. as on 14.7.1997, as Rs.1 lakh, which is nothing but a mockery of the legal process so far as it is concerned with the sale of properties by auction sale and therefore it is not only a mere material irregularity or fraud committed on the part of the decree holder, but also would show how low the decree holder has estimated the values of the judicial system and the Court of law as a mere formality, forgetting the fact that it has indulged in a sacrosanct act of rendering justice based on the true facts and circumstances of the case and in application of the laws. No mention need be necessary that such an attitude to malign and mar the very judicial system should be decried and depricated in which the only way kept open is by means of entertaining such an application testifying the validity of the auction sale held thus giving effect to Order 21 Rule 90(1) CPC in exclusion of which alone one could resort to Order 21 Rule 90(3) CPC. Therefore, this Court is of the firm view that the Division Bench judgment of this Court, delivered following the judgment of the Apex Court mentioned supra, aptly applies to the case in hand and hence no irregularity or illegality has been committed on the part of the lower Court in reopening the sale entertaining an application filed on the part of the judgment debtor as it has been done in the case in hand.
27. On facts, the lower Court, in its lengthy fair and decretal order, has discussed all the facts and circumstances in the context of law and not only the decision arrived at by the lower Court, but the manner in which it has been arrived at is beyond question and does not warrant any interference so far as it has allowed the application filed on the part of the judgment debtors praying to set aside the sale held by the court already.
28. Coming to the next point relating to the above CRP, the Court below has dismissed the application filed on the part of the judgment debtors under Order 21 Rule 18-A praying to appoint a Technical Person as the Commissioner to inspect the suit properties and also to file a report. This application cannot be said to be unrelated to the main issue relating to set aside the auction sale by the lower Court as aforeseen which are the subject matters of the above two Civil Miscellaneous Appeals since the main claim of the judgment debtors is that the valuation of the property adopted for sale is shocking the conscious of anyone absolutely having no nexus with the market value of the said property which according to the judgment debtors is Rs.2½ crores and the same according to the decree holder is Rs.1 lakh. Therefore, needless to mention that the said property for sale should have to be apprised or estimated by a Technical Person and only seeking for an order of the appointment of a Technical Person as the Commissioner to inspect the suit property and to file a report to the Court, for apprising the Court of the actual market value of the property, this application has been taken out by the judgment debtors. Therefore, no independent decision could be taken on this application by the lower Court as it has been done without having a comparative study of this application along with the other application to set aside the sale wherein the main ground is the under-valuation of the property. Therefore, both the applications especially the relief sought for should have been read along with each other by the lower Court in which event, the lower Court which has arrived at the conclusion that the property was not properly valued for ascertainment of the market value for sale of the same by auction, should have inseparably decided this application filed under Order 21 Rule 18-A of the CPC by the judgment debtors, consequent to the decision made in the other application to set aside the sale, in which event, automatically, the lower Court would have decided this application also in the affirmative.
29. But, on the contrary, an erroneous decision has been made by the lower Court dealing with this application on untenable and unsustainable reasons. In fact, the lower Court, should have allowed this application also thereby appointing a Technical Person as the Commissioner, as prayed for by the judgment debtors and original owners of the property. Since this Court is of the view that the decision taken by the lower Court to set aside the sale being related with the value of the property, the appointment of a Technical Person as the Commissioner to inspect the suit property is not only essential but inevitable and therefore it is inclined to allow the above Civil Revision Petition.
In result,
(i)Civil Miscellaneous Appeal Nos.1056 of 2000 and 191 of 2001 fail and they are dismissed.
(ii)Civil Revision Petition No.2589 of 2001 succeeds and the same is allowed.
(iii)The fair and decretal order dated 12.4.2000 made in E.A.No.324 of 1998 in E.P.No.82 of 1997 in O.S.No.175 of 1988 by the Court of Principal Subordinate Judge, Dindigul is hereby confirmed.
(iv)The fair and decretal order dated 12.4.2000 made in E.A.No.39 of 1999 in E.P.No.82 of 1997 in O.S.No.175 of 1988 by the Court of Principal Subordinate Judge, Dindigul is hereby set aside.
(v)The application in E.A.No.39 of 1999 in E.P.No.82 of 1997 in O.S. No.175 of 1988 on the file of the Court of Principal Subordinate Judge, Dindigul stands allowed.
However, in the circumstances of the case, there shall be no order as to costs.
Consequently, C.M.P.Nos.2972 of 2001 and 13754 of 2001 are closed.
Index: Yes Index for Internet: Yes Rao 29.4.2002.
To The Principal Subordinate Judge, Dindigul.
Rao V.KANAGARAJ, J.
Common Order in CMA.Nos.
1056/2000, 191/2001 and C.R.P.No.2589 of 2001 and CMPs.2972 & 13754/2001