Madras High Court
Saminathan vs The Manager on 1 October, 2009
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/10/2009 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CRP.No.2340 of 2008 MP.Nos.1/2009 and 2/2008 Saminathan Petitioner/Respondent/Defendant Vs 1.The Manager, State Bank of India Chinnadharapuram, Aravakuruchi Taluk Karur District 1st respondent/petitioner/plaintiff 2.Gopalakrishnan 2nd Respondent/3rd party Prayer This Civil Revision Petition is filed against the decree and order dated 29.10.2008 in EP.No.6/2006 in OS.No.677/1998 passed by the learned District Munsif, Karur. !For Petitioner ... Mr.Balaji Srinivasan ^For Respondent ... Mr.Sethuraman - R1 Mr.M.Vallinayagam - R2 :ORDER
This Civil Revision Petition is filed by the Defendant to set aside the order dated 29.10.2008 in EP.No.6/2006 in OS.No.677/1998 passed by the learned District Munsif, Karur, confirming the sale and issuance of sale certificate.
2. The back ground facts need to be noted in brief are as follows:-
The above said suit was filed by the 1st Respondent Bank/ Plaintiff for recovery of money and the suit was decreed exparte. In the proceedings for execution of the decree in EP.No.6/2006, the 2nd Respondent purchased the Petitioner/judgement debtor's property for a sum of Rs.45700/- and the sale was confirmed on 29.10.2008. As against the confirmation of sale, the Petitioner/Judgement debtor has filed this Civil Revision Petition contending that the executing court ought not to have proceeded with the sale of entire six items of the properties and it is obligatory on the part of the executing court to bring only such portion as would satisfy the decree at the first instance.
3. The learned counsel for the Petitioner would contend that it is the bounden duty of the court to first decide as to whether it is necessary to bring the entire properties to sale or such portion thereof as may deem necessary to satisfy the decree and would vehemently contend that the sale of the property of the Petitioner conducted by the executing court is clearly illegal and placed reliance on the decisions of the Honourable Supreme Court rendered in the cases of Lal Chand Vs. VIII Additional District Judge and others [1997-4-SCC-356], Takkaseela Pedda Subba Reddi Vs. Pujari Padmavathamma [1977-3- SCC-337] and L.Balu Vs. Periasami and others [AIR-1988-Madras-114].
4. Per contra, the learned counsel for the 1st Respondent would submit that when there is no collusion between the parties or suppression of facts and the judgement debtor has also not raised any objection regarding the upset price fixed by the court, the court auction sale cannot be set aside on the ground of any irregularity in conducting the sale. In support of the said contention, the decision of this court rendered in the case of Marimuthammal and others Vs. Vaithi and others [2007-4-MLJ-796] was relied on by the learned counsel for the 1st Respondent.
5. The learned counsel for the Petitioner drew the attention of this court to the deposit of the decree amount made by him pursuant to the order of this court granting interim stay in this Civil Revision Petition in MP.NO.2/2008 and pleaded that notwithstanding confirmation of sale, due to pendency of this Civil Revision Petition and stay granted, the sale in favour of the auction purchaser has not become absolute and hence appropriate relief could be granted to the Petitioner/judgement debtor.
6. It is one of the contentions of the learned counsel for the Petitioner that there was no notice of sale to the judgement debtor and behind his back the sale was conducted at throw away price and therefore, the sale is not valid.
7. It is pertinent to refer to certain facts for better appreciation. The decree dated 2.11.1998 had become final as no appeal was filed by the judgement debtor. On 25.1.2000, EP.NO.73/1999 for arrest had been filed, but the same was dismissed since the judgement debtor was not found for arrest. Another EP in EP.No.137/2001 for arrest of the judgement debtor was also dismissed for the same reason. Thereafter, EP.NO.166/2003 had been filed for attachment and sale and the properties had been attached on 23.12.2003. On 20.4.2004, EP.NO.166/2003 had been closed with a direction to continue the attachment for two months. Thereafter, EP.NO.6/2006 had been filed within two months from the closure of previous EP and sale notice has been ordered to the judgement order by 10.2.2006 and notice has been served on the judgement debtor on 21.2.2006 through court and post. He had been set exparte on 21.2.2006 and upset price has been fixed on 22.9.2006. As there was no bidder and the upset price was also very high, at the instance of the decree holder in EA.NO.18/2007 upset price had been reduced.
8. As there was no bidder in the auction held on 16.6.2007, again on the application filed by the decree holder in EA.NO.172/2007, upset price has been further reduced. ON the above two occasions, notice has been served on the judgement debtor before allowing those applications. Again the property has been brought to sale on 31.10.2007 which necessitated for further reduction of upset price at the instance of the decree holder in EP.No.81/2008. Even then the judgement debtor failed to appear in spite of notice. The properties were brought to sale on 18.6.2008. As no one came forward to bid in the court auction on the memo filed by the decree holder the property was brought to sale on 27.8.2008 on the same upset price on 27.8.2008 in which one Gopalakrishnan, the 2nd Respondent had purchased the property for Rs.45700/- and the sale has been confirmed since no petition either under Order 21 Rule 89 or 90 was filed and the entire sale amount was deposited in time.
9. It may be mentioned here that notice has been served on the judgement debtor on every occasion and in spite of it, he has not availed the relevant provisions for seeking to set aside the sale either under Rule 89 or 90 of Order 21 of CPC. At this juncture, it is relevant to point out to the observations made by the High Court of Andhra Pradesh in the case of Vummethala Somamma Vs. Thameeru Balanagamma [AIR-2003-AP-45] in similar set of facts and circumstances in paragraphs 5, 6 and 7, which read thus:-
"5. It is obvious that, if this revision petition is entertained for any reason and the impugned docket order is set aside, it would tantamount to setting aside the sale itself. That apart, it is now represented that the sale has been subsequently confirmed by the executing court. A fortiori when the sale has been confirmed, it cannot be sought to be set aside by filing a revision as against the impugned order, where under the sale has been knocked down in favour of the decree holder, he being the highest bidder. It is always open to the judgement debtor or the third party auction purchaser to seek to set aside the sale under the relevant provisions as discussed herein above of the Civil Procedure Code. When the Petitioner failed to avail such remedies available either under Rule 89 or Rule 90 of Order 21 of CPC the Petitioner cannot be permitted to circumvent the said provisions by filing this revision to indirectly achieve the object.
6. Yet another aspect to be considered in this regard is the point of limitation. Under Article 127 of the Limitation Act, time is prescribed for filing the application seeking to set aside the sale. Obviously that time has been elapsed by now. What is not available having been barred by limitation, cannot be permitted to be achieved indirectly, as it would tantamount to circumventing the specific provisions incorporated in the statute in regard thereto. Therefore, it is a clear case where the judgement debtor having not availed the remedies available either under Rule 89 or 90 of Order 21 of CPC cannot now be permitted to achieve the same by maintaining this revision petition indirectly to set aside the sale. In my considered view, therefore, the present revision petition is misconceived and is not maintainable.
7. Another aspect to be considered is the absolute prohibition incorporated in sub rule (3) of Rule 92 of Order 21 of the Civil Procedure Code. This prohibits any other remedy when once the sale is confirmed. In any view of the matter, the present revision petition cannot be maintained."
10. From the above said decision, it is clear that when the executing court was not asked to act under Order 21 Rule 64 of CPC by exercising its discretion to sell only part of the property attached, it is not open to the Petitioner/judgement debtor to raise that point in this Civil Revision Petition.
11. In a recent decision of the Honourable Supreme Court rendered in the case of Balakrishnan Vs. Malayandi Konar [2006-3-SCC-49] the Honourable Supreme Court referring to Order 21 Rule 64 of CPC has held that the expression in Order 21 Rule 64 that "such portion thereof as may deem necessary to satisfy the decree" indicates the legislative intent that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. The sale without examining the said aspect and not in conformity with this mandatory requirement would be illegal and without jurisdiction. But however it was observed that when the question regarding the legality of the sale had attained finality because of the confirmation of sale, no interference could be called for. The relevant observation is extracted below:-
"Therefore, on the back ground facts noted by the High Court, the auction sale did not meet the requirements of law. But, at the same time it appears that the question regarding the legality of the sale had attained finality because of the confirmation of sale on 22.8.1983. Though it is contended by the learned counsel for the Respondent that the order dated 10.9.1987 passed by the High Court rejecting CRP.No.3963/1983 filed by the judgement debtor seeking relief was relatable to the Debt Relief Act, that did not have the effect of reviving the question relating to violation of Order 21 Rule 64 of the Code."
12. In the instant case, the judgement debtor having kept quiet without availing any of the provisions in spite of the notice served on him and allowing the sale to be confirmed, it cannot be set aside contending that Order 21 Rule 64 of CPC is violated. When the Petitioner has failed to avail such remedies available either under Rule 89 or 90 of Order 21 of CPC, the Petitioner cannot be permitted to circumvent the said provisions by filing this revision to indirectly achieve the object.
13. For the reasons aforesaid, this Civil Revision Petition is dismissed. No costs. Consequently, the connected MPs are closed.
Srcm To:
The District Munsif, Karur.