Andhra HC (Pre-Telangana)
Pappasani Narayana Reddy vs Mandem Reddappa Reddy on 1 July, 2004
Equivalent citations: AIR2005AP239, 2004(4)ALD703, 2004(5)ALT226, AIR 2005 ANDHRA PRADESH 239, (2004) 4 ANDHLD 703, (2004) 5 ANDH LT 226, (2004) 4 ICC 671, (2005) 1 CIVILCOURTC 480, (2005) 2 ANDHLD 468, (2005) 2 ANDH LT 550, (2005) 1 CIVLJ 732
ORDER A. Gopal Reddy, J.
1. The petitioner-plaintiff filed this revision petition aggrieved by setting aside the sale ordered in EP No.1/1992 for due execution of decree for recovery of amount obtained by him in OS No.50/81 by the Senior Civil Judge, Kadiri in EA No.40/94 dt. 31-12-2001 as confirmed by the Additional District Judge, Anantapur in CMA No.7/2002 dt. 26-12-2002.
2. This revision raises some points of practical importance in exercising the powers by the civil court under Order 21 Rule 90 of the Code of Civil Procedure (for short "the Code") to set-aside the sale ordered by it in execution of decree and appropriate procedure for challenging its decision in ordering sale.
3. On filing EP No.1/92 by the petitioner-Decree Holder to sell the EP schedule property for due recovery of the decretal amount, the executing court ordered sale notice to the respondent-Judgment Debtor. He engaged an advocate to defend his case. On failure of his filing counter, he was set ex parte and EP was adjourned for filing SP and EC. On filing SP and EC, the executing court again ordered fresh sale notice and the respondent was set-exparte though notice was served by affixture. Accordingly, property was auctioned on 27-8-93. The petitioner-Decree Holder became the higher bidder for Rs.28,000/-. Before confirmation of sale, respondent filed above EA for setting aside the sale contending that sale notice was not served on him though he continuously residing at his native place, therefore affixture of the same by the Process Server is an irregularity and is not proper service. It was further contended that sale notice was published in newspaper by name Sadhana which was having a very little circulation. Further sale was not proclaimed in the village by beat of tom tom and sale notice was not affixed at the village Chavidi. He was not given an opportunity to give market value of the property and the sale, which was knocked down in favour of the respondent, is much below the market value and the sale is vitiated.
4. The respondent contested the same contending that the properties were attached before judgment and notice under Order 21 Rule 54 was served on the respondent and no further notice is required to be served once again. Even otherwise, notice as contemplated under Order 21 Rule 66(2) of the Code was served by affixture. As he engaged an advocate, it amounts to sufficient service.
5. Executing court after going through the material on record held that though respondent-Judgment debtor engaged an advocate earlier, on failure to file counter, he was set ex-parte. Even though the court ordered fresh notice the same was not properly served. Even if the service of sale notice by affixture amounts to proper service, sale notice had not been issued under Order 21 Rule 54(1A) of the Code. In view of the same, issuing a notice under Order 21 Rule 66 (2) CPC is a must and no such notice is issued before settlement of terms. Since no notice either under Order 21 Rule 54(1A) or under Order 21 Rule 66(2) was issued, sale is vitiated and accordingly set-aside the sale. Aggrieved by the same, the petitioner carried the matter in appeal before the Additional District Judge, Anantapur by filing CMA No.7/2000. The Additional District Judge after going through the record held that the material available on record would clearly disclose that there was no compliance of the mandatory provisions under Order 21 Rule 66(2) and sale proceeded caused substantial injury to the respondent. As per the amendment effected to Order 21 Rule 66(e) which is applicable to AP, the value of the property as stated by the Decree Holder and the Judgment Debtor must be stated in the proclamation and as the Judgment Debtor has not given the value, substantial prejudice has been caused to the Judgment Debtor, executing court rightly set-aside the sale, which do not require any interference and while holding so dismissed the appeal.
6. Learned counsel for the petitioner contends that the order passed by the Senior Civil Judge (Executing Court) as confirmed by the appellate court is vitiated by material irregularities. Since the amendment as noticed in TRIPURA MODERN BANK V. BANSEN & CO., much reliance was placed by the executing court is not applicable to the State of Andhra Pradesh and it will be made applicable to only Calcutta. He further contends that once the Executing Court after satisfying the service of notice by the Process Server set the respondent ex parte, it has no power to review its earlier order and declare that the service of notice is not according to law.
7. Once on issuance of notice the respondent engaged an advocate and he was set ex parte on failure to file counter, no further notice is required to be issued and even if fresh notice which was ordered was affixed by the Process Server, it is for the respondent to examine the Process Server to establish that he has not made any endeavour to serve the notice personally. In view of the same, courts below are not justified in setting aside the sale.
8. Per contra, learned counsel for the respondent contends that once notice was issued, it has to be served in the manner prescribed under Order 5 Rule 20 and without exhausting the procedure for service of summons on the respondent, affixture of the same by the Process Server is an material irregularity. Since both the courts found that no notice as contemplated either under Order 21 Rule 54 (1A) or under Order 21 Rule 66(2) is served on the Judgment Debtor, the executing court rightly set-aside the sale ordered by it as affirmed by the lower appellate court, which do not warrant any interference.
9. In the light of the rival contentions, two questions arise for consideration in the revision petition are:
1. Whether service of notice under Order 21 Rule 54 will comply the mandatory provision of Order 21 Rule 66(2) of the Code?
2. Whether service of sale notice by the Process Server by affixation amounts to a proper service?
10. Before I proceed to answer the above questions, it is appropriate to notice the relevant statutory provisions:
ORDER 21 RULE 54 (1A) (1) x x x x x x x;
(1A) 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.
ORDER 21 RULE 66 (2) (1) x x x x x x x ;
(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) x x x x x;
(c) x x x x x ;
(d) x x x x x;
(e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property:
Provided that where notice of the date for settling the terms of the proclamation has been given to the judgment-debtor by means of an order under rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs:
Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given by cither or both of the parties.
ORDER 5 RULE 20 (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.
(1A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.] Effect of substituted service.-(2) Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. Where service substituted, time for appearance to be fixed.-(3) Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.
11. Learned counsel for the petitioner, except stating that pursuant to the notice under Order 21 Rule 54, respondent appeared through an advocate, has not made any endeavour to satisfy that such notice was issued in terms of Order 21 Rule 54(1A), namely, notice should satisfy the requirements as per rule 196 of the Civil Rules of Practice in the prescribed form, only when such notice is issued intimating the Judgment Debtor to take notice of the date to be fixed for settling the terms of the proclamation of sale it satisfies the requirement of law. Mere issuance of notice under Order 21 Rule 54 (1) cannot be construed as notice under Order 21 Rule 54(1A). Only when such notice is issued proviso to Order 21 Rule 66(2) will spring into action, namely, if such notice is issued as contemplated under Order 21 Rule 54(1A) no further notice is required under Order 21 Rule 66(2). The finding arrived at by both the courts below that notice under Order 21 Rule 54(1A) has not been given to the Judgment Debtor, which is a pure finding of fact, which the court below is entitled to make based upon the records. I find in agreement with the executing court that no such notice was issued to the Judgment Debtor as required under Order 21 Rule 66(2) of the Code, which is mandatory in nature. Point No.1 is accordingly answered.
12. Coming to the next submission made by the learned counsel for the petitioner that once the court orders notice under Order 21 Rule 66(2), which was served by way of affixture is a proper service or not. It is not in dispute the procedure contemplated for service of notice under Order 5 is made applicable for service of notice in the execution proceedings also. Rule 12 of Order 5 require that wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient, thus the requirement of law is that effort must be made to serve summons personally on the defendant (Judgment Debtor). Rule 15 of Order 5 of the Code empowers the Process Server to serve the summons on any adult member of the family provided at the time of service the defendant is absent from his residence when service of summons is sought to be effected and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service.
13. Admittedly, Process Server even did not bother to make repeated effort to effect personal service on the Judgment Debtor. He did not bother to record on the summons that there was no agent available to serve the summons on the Judgment Debtor. There is no order by the Court as contemplated under Order 5 rule 20 that Judgment Debtor is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, hence the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house, in which Judgment Debtor is known to have last resided or service by way of advertisement in a newspaper. Such procedure can be followed on a report submitted by the Process Server. In the absence of same, service of notice by Process Server by way of affixation is not a proper service and it is held that report on the summons is either fake or purposely made to give a colour of due service. In view of the same, the submission made by the learned counsel for the petitioner that notice served by Process Server by way of affixation amounts to service under Order 21 Rule 66(2) cannot be accepted.
14. Both the courts concurrently held that no notice was served on the judgment debtor as contemplated either under Order 21 Rule 54 (1A) or under Order 21 Rule 66(2) CPC. In view of the same, the courts below rightly set-aside the sale on placing reliance upon the judgments of this court in M.P.N. REDDI V. MADDIVENKAYYA, and KHASIM BI V. T.G. LAKSHMAYYA THIMMAYYA SETTY, . In view of the same, it is not a fit case where this court can exercise the revisional jurisdiction in interfering with the said order.
15. The Civil Revision Petition is accordingly dismissed. No costs.