Kerala High Court
V.P. Praseethan vs T.P. Sivarama Krishnan And Anr. on 8 January, 1996
Equivalent citations: AIR1996KER267
Author: K.G. Balakrishnan
Bench: K.G. Balakrishnan
JUDGMENT Balakrishnan, J.
1. Appellant is the auction purchaser in a Court sale held on 21-12-92 in execution of a decree obtained by the 2nd respondent against the first respondent. The property belonging to first respondent measuring an extent of 4.91 acres was sold for an amount of Rs. 1,50,010/-. First respondent filed application to set aside the sale as E.A. 77 of 1993 alleging that there was material irregularity and fraud in publishing and conducting the sale. First respondent also alleged that the property was sold for highly inadequate price of Rs. 1,50,010/- and the annual income from the property itself would exceeded Rs. 60,000/- and, therefore, the first respondent was seriously prejudiced by the Court sale. Appellant herein opposed the application. Seven witnesses were examined and Exts. Clause to C5 were marked and learned Sub-Judge held that the proclamation of sale was not properly done and the fact that only one person had participated in the sale and the low value of the property proved that there was irregularity in conducting the sale. Appellant challenges the findings of the learned Sub-Judge.
2. We heard appellant's counsel and counsel for the respondents. First respondent's counsel contended that there was no valid proclamation of sale and that the first respondent had not received notice under Rule 66. This contention is not correct. First respondent had received notice and the order shown in he proceedings and the entire records produced before us clearly show that the first respondent judgment-debtor after having received notice under Rule 66 did not file any tenable objection. In the series of applications filed by him he prayed that the sale may be adjourned without making fresh proclamation and this indicated that he had no objection whatsoever regarding the proclamation of sale.
3. As regards the value of the property also first respondent is not entitled to raise any objection. Originally the upset price was fixed at Rs. 2,50,000/-. There were no bidders and the decree-holder filed E.A. 232/92 to reduce the upset price and by order dated 8-7-92 the upset price was reduced to Rs. 2,00,000/- and the property came up for sale on 24-9-92. There were no bidders and the decree holder again filed application as E.A. 413 of 1992 and by order dated 3-11-92 the upset price was reduced to Rs. 1,50,000/- and the sale was held on 21-12-92. The learned Sub Judge held that there was no proper sale proclamation and assumed that the proclamation was not effected as was required. This finding was on the basis that the witnesses examined on the side of the first respondent had no occasion to see the proclamation being made in the property by beating of drums. These witnesses claimed that they are residents of the nearby locality and they have got property adjacent to the property in question. The Amin has submitted a written report and one of the witnesses who had affixed the signature in the sale proclamation is the wife of the judgment-debtor. She was examined as a witness and she admitted the signature found in the report of the Amin. Copy of the proclamation was published in the notice board of the Village Office. All these facts are evident from the records in this case. When these official acts are done the ordinary presumption is that it must have been done correctly. The fact that some of these witnesses had not seen the affixture of notice and the beating of drums is of no consequence. The evidence of the Amin supported his report and, therefore, it cannot be said that there was no proper proclamation of sale and that the absence of sufficient number of bidders was due to these facts.
4. Another reason that weighed with the learned Sub-Judge in setting aside the sale of the property is that as per the valuation of the Commissioner the property valued at Rs. 5,55,910/- and as it was sold for Rs. 1,50,000/- there was irregularity. The learned Judge found that the judgment-debtor had sufficient opportunity to raise objection regarding the value of the property but was of the view that lesser value was obtained for the property due to the absence of effective proclamation. But, this also is not supported by any evidence. Admittedly, the property is in a remote place and there were no bidders and on two occasions the upset price had to be reduced. Therefore, it cannot be said that the sale was for a lesser amount and that was due to the absence of proper proclamation.
5. Another reason attributed by the learned Sub-Judge is that the time of the sale was not given in the proclamation and, therefore, the sale is vitiated. First of all, there is no case for the first respondent that because of the non-mentioning of time of sale in the proclamation he was prejudiced. Order 21, Rule 90(2), C.P.C. reads as follows:
"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."
When the first respondent himself has no case that he had suffered any injury on account of the non-mentioning of the time of sale, the sale cannot be set aside on that count.
6. Admittedly, there is no vitiating circumstance in setting aside the sale. There was proper publication and the first respondent was aware of the fact that his property was being sold in execution of the decree obtained against him. He had been making payments and seeking adjournment of the sale. There was valid proclamation of sale and under these circumstances, the sale conducted by Court cannot be lightly set aside. Third party might have acquired right in the property and if Court sales are to be set aside for simple reasons nobody would come forward to participate in Court sale. We do not find any justifiable grounds to set aside the sale and we set aside the order passed by the learned Sub-Judge in E.A. 77/93 in E.P. 342/89 in O.S. 89 of 1988.
C.M.A. is allowed.