Andhra HC (Pre-Telangana)
S.V. Rama Krishna vs R. Subbamma And Anr. on 24 April, 2001
Equivalent citations: 2001(5)ALT657
Author: N.V. Ramana
Bench: N.V. Ramana
ORDER N.V. Ramana, J.
1. The appellant-herein is judgment-debtor. He filed E.A. No. 410/1991 in E.P. 4/1991 in O.S. 33/1987 on the file of Senior Civil Judge, Tadepalligudem under Order 21, Rule 90 CPC to set aside the sale dated 25.11.1991. The Court below after considering the evidence, both oral and documentary, adduced by both parties came to the conclusion that there are no irregularities or fraud played by the respondents, viz., the decree holder and auction purchaser in the auction held on 25.11.1991 and dismissed the said E.A. 410/1991. Aggrieved by the same, this appeal is filed by the judgment-debtor.
2. In this appeal, status quo order was granted 7.12.1996 for a period of one month and the matter was directed to be posted for orders on 17.1.1997. On 30.1.1997, the status quo order was extended till 7.2.1997. On 2.5.1997, the status quo order was extended till the end of June 1997. On 11.7.1997, the said status quo order was extended till 14.7.1997. On 19.9.1997, the matter was directed to be listed on 24.9.1997 in the motion list. On 20.10.1997, the appeal is directed to be listed for final hearing on 28.11.11997.
3. On 10.7.1998, this appeal was dismissed for default. Later, on 26.10.1998, by order in C.M.P.No. 16642 of 1998, the appeal is restored to file.
4. Again, on 31.12.1998, interim stay was granted for six weeks and the appeal was directed to be listed for orders on 18.1.1999. Subsequently, the status quo order expired, as it was not extended by this Court. Now, the matter came up for hearing before this Court.
5. The first respondent-herein/decree holder filed the suit O.S. 95/1987 on the file of Senior Civil Judge, Tadepalligudem against the present appellant for recovery of Rs. 41,246-88ps. The suit was decreed on 27.2.1987. In execution of the decree the decree holder filed EP.4/1990 and brought the land of the appellant in an extent of Ac 2.15 cents situate at Nidamarru village, West Godavari District for sale. In the E.P., sale has taken place on 25.11.1991 and the 2nd respondent/auction purchaser knocked down the sale, being the highest bidder in the auction. Against the said sale, the present appellant filed E.A. 410/1991 praying to set aside the sale, on the ground that the properties put to sale are worth more than two lakh rupees and the 2nd respondent knocked away the same at a substantially lower amount of Rs. 69,000/-, and that the sale is a collusive and nominal one and that with the connivance of the other participants the 2nd respondent has knocked away the property at a lower rate.
6. It is the case of appellant in the E.A, that the upset price of Rs. 60,000/- fixed by the court below is very low when compared to the market value of the property and the lower court also failed to see that the details and nature of property are not mentioned/printed in the paper publication Ex.A.2. According to the appellant, the paper in which Ex.A.2 publication was made is not a newspaper of wide circulation in the area and so Ex.A.2 cannot be considered as a daily newspaper. On the above grounds, the appellant filed E.A. 410/1991 to set aside the sale.
7. The decree holder/1st respondent filed counter in E.A. 410/1991denying the allegations of the appellant in the E.A. It is contended that there is no material irregularity in proclamation of sale and denied that the sale did not take place after 5 P.M as alleged by the appellant. It is stated that the sale was held, during the working hours of the court, at 3 p.m., immediately after lunch.
8. The auction-purchaser/2nd respondent filed counter in E.A. 410/1991 denying the allegations of the appellant in the E.A, contending that his bid is for Rs. 69,000/- and he deposited one-third thereof immediately on 25.11.1991. It is contended that no irregularities took place in publishing the sale notice and in conducting the sale by the Court.
9. Basing on the said contentions, the court below framed a question as to "whether there is any irregularity or fraud played by the respondents in the sale conducted on 25.11.1991".
10. On a consideration of the evidence, both oral and documentary, adduced by both parties in E.A.410/91, the court below came to the conclusion that there is no error or irregularity in conducting the sale and that there was no collusion or fraud played by the respondents in the auction. The court below also observed, basing on the evidence of the appellant himself, that there are already 7 or 8 money decrees passed against him and two or more suits are still pending against him and that the present E.A. was filed only to drag on the execution proceedings for some time. Ultimately, the court below dismissed the E.A.
11. Aggrieved by the same, the judgment-debtor filed this appeal.
12. The first contention of the appellant in this appeal is that the decree in the suit is an instalment decree and there is no need to bring the property to sale. Counsel for appellant submits that the appellant admits that the total decretal amount is Rs. 53,424-98ps as on 1.8.1991, i.e., the date fixed for sale. He submits that on 1.8.1991, the appellant paid a sum of Rs. 5000/- and the sale was adjourned to 30.8.1991; the appellant paid a sum of Rs. 2000/- on 30.8.1991 and the sale was adjourned to 24.9.91 on which date he paid Rs. 2000/- and the sale was adjourned to 1.10.1991; on 1.10.1991 he paid Rs.500/- and the sale adjourned to 11.10.1991; on 11.10.1991 appellant paid Rs. 500 and the sale was adjourned to 4.11.1991 and on 4.11.1991 the appellant paid Rs. 500 and the sale was adjourned to a later date. Counsel for appellant contended that inasmuch as the decree-holder has accepted the abovesaid payments, the decree in question is an instalment decree and hence there is no need to sell the property by way of court auction.
The second contention of the appellant's counsel is that the newspaper "Radhakrishna", in which Ex.A.2 sale publication is made, is not a daily newspaper having wide circulation in the area and therefore the court below committed error in publishing the sale notification in Ex.A.2 newspaper.
13. The third contention of appellant's counsel is that respondents 1 and 2 are residing together and the sale is nothing but a purchase made by the decree-holder/first respondent indirectly.
14. The 4th contention of appellant's counsel is that there is no beat of tom-tom conducted in the village about the sale.
15. The fifth contention of appellant's counsel is that the value of property is not properly assessed by the trial court.
16. On behalf of the respondents counsel appeared and contended that there are no grounds to interfere with the order under appeal. It is contended that the appellant is a chronic litigant and a number of money decrees are passed against him by the courts and some E. Ps are still pending against him. It is submitted that even though the suit is decreed on 27.2.1987, the appellant successfully dragged on the matter for more than thirteen (13) years without satisfying the decretal amount. He contended that even though the 2nd respondent has participated in the sale which was held in 1991, i.e., about ten years ago, the appellant has successfully prevented the court to get the sale confirmed and sale certificate issued to the auction purchaser. Counsel for respondents further contended that the present litigation is a frivolous one to harass the decree holder as well as the auction purchaser/respondents 1 and 2.
17. It is also contended by the learned counsel for the respondents that the appellant has not raised any objection regarding publication of sale notification made in Ex.A.2 newspaper at the earliest point of time and on the other hand the appellant himself attended the court below after the publication made in Ex.A.2 and paid some amounts to stop the further proceedings in the E.P. The sale under Order 21, Rule 89 CPC is postponed every time only at the request of the appellant and the interval between one adjournment and the other is of less than thirty days duration. In such case, there is no need to order fresh publication about the sale. It is also contended that the appellant did not file counter in the E.P raising any objection regarding the valuation of the landed property brought to sale or any other objection, and that without raising these objections in the court below the appellant is now raising these objections in this appeal. Apart from that, the appellant's own witness PW.2 admitted that the value of the land at the relevant point of time was Rs. 25,000/- per acre. According to RW.3, in 1992 itself he purchased the adjacent land at the rate of Rs. 23,000/- per acre. Exs.B.1 and B.2, extracts of registered sale deeds show that the value of the land in 1993 itself is Rs. 22,000. The land which is the subject-matter of sale was offered at Rs. 32,000/- per acre and therefore the appellant is benefited by the sale and there are no reasons to raise any objections to the sale at this point of time and prayed for dismissal of the appeal.
18. Keeping in view the rival contentions of the parties, I have gone through the order under appeal as well as the evidence on record.
The points for consideration in this appeal are:
1. whether there are any irregularities in conducting the sale on 25.11.1991, and
2. whether any fraud is played by respondents in the auction and whether there is any collusion between respondents 1 and 2?
19. It is the admitted case of the appellant that as per the decree he has to pay Rs. 53,424-98ps as on 1.8.1991. Subsequently, he paid altogether a sum of Rs. 11,500/- in between 1.8.1991 to 14.11.1991. Ex.A.2 is the newspaper "Radhakrishna" in which the sale notification was published on 27.6.1991. In this case, as per Exs.B.1 and B.2 documents, which are marked by the respondents, the value of the schedule land was fixed. According to the judgment-debtor, the value of the schedule land Ac. 2.50 cents is Rs. 40,000/- per acre. The Court Amin fixed the total value of the property as Rs. 50,000/-. The court below fixed the upset price of the property as Rs. 60,000/-, which is more than Rs. 10,000/- above the value fixed by the Amin. Thereafter the sale notification was published in Ex.A.2 newspaper. After coming to know about the sale, appellant paid certain amounts to the decree holder and sought adjournment of sale on more than four occasions. Finally the sale was held on 25.11.1991. The upset price was fixed at Rs. 60,000/-. The 2nd respondent/auction purchaser knocked away the property at a price of Rs. 69,000/-. Therefore, the price fetched in the auction is more than the upset price. It is only after the sale, the present appellant sought to raise the peals regarding low valuation of the property and improper publication of sale notification in newspaper. None of these objections are taken or raised by the appellant in the court below by filing any counter-affidavit or memo prior to the date of conducting sale. So, in the absence of any objection raised by the appellant before the court below regarding the sale notification and valuation of the property in question, the appellant is estopped from raising such pleas before this court or before the court below after the sale.
20. To appreciate the contentions of the counsel for appellant, I have perused the evidence adduced by both parties before the court below.
21. According to the evidence of PW.2, he himself purchased three acres of land four years back at the rate of Rs. 25,000/- per acre in the same village. He gave evidence in the year 1996 in the E.A. So, the evidence of PW.2 clearly shows that the value of the land is around Rs. 20,000/- to Rs. 25,000/ per acre- as on the date of sale in this case. In addition to the evidence of PW.2, the evidence of RW.3 discloses that he purchased 0-46 cents of land, which is adjacent to the land of the appellant, in the year 1992 at the rate of Rs. 23,000/- per acre. He filed certified copy of the sale deed Ex.B.2 to that effect also. Therefore, the evidence of PW.2 and R.W.3 coupled with Exs.B.1 and B.2 would disclose that the value of the land in the village is around Rs. 20,000/- to Rs. 25,000/- per acre in the year 1992.
22. In Re Contention No.1:- Contention of appellant is that inasmuch as the decree holder has accepted part payments after passing of the decree in the execution proceedings, the decree must be deemed to be an instalment decree, and hence there is no need to bring the property in question to sale.
23. First of all the, the material on record does not disclose that the appellant has moved any application before the court below seeking permission to pay the decretal amount by way of installments and that the respondent/decree-holder has agreed for the same. Already there is a decree passed by the court below and an execution petition is filed. Because of the failure of the appellant, the property is brought to sale by the decree-holder. Then sale notification is issued. After issuing sale notification, the appellant made an attempt to stall the sale by paying some small amounts each time to the decree-holder. Once a decree is passed and sale notification is issued, there is no reason to treat the decree as an instalment decree. The admitted evidence of the appellant shows that he obtained adjournment of sale by paying some amounts each time. The appellant, in his evidence as PW.1, admitted that -"I obtained the adjournment of sale by paying some amount every time and on a petition filed by me. I know that my advocate filed a petition in the court requesting the court to permit me to have a private sale of the schedule property". Therefore, the intention of the appellant by paying some amount on each and every date of adjournment is only to sell the property in question by private sale. The appellant's admitted case is that he has not filed any petition requesting the court to permit him to pay the amount in installments. So, contrary to the own evidence of the appellant, the decree in the suit cannot be treated as an instalment decree. Apart from that the appellant in his evidence admitted that there are about 7 or 8 money decrees passed against him and two or more money suits are pending against him. The evidence on record shows that the appellant is well aware of the proceedings of the court. This contention is without force and the same is hereby rejected.
24. In Re Contention No.2:- The contention of the counsel for appellant is that the newspaper in which Ex.A.2 sale notification is published is not a widely circulated local newspaper.
25. PW.3 is the Editor of "Radhakrishna" newspaper. He was examined as a witness by the appellant. This newspaper is an approved newspaper by the District Court, West Godavari, as per the norms, for publishing the Court notices. The court below has ordered publication of the sale notification in the said newspaper "Radhakrishna" as the said paper is an approved newspaper. The appellant has not taken any objection at the time of publication or even subsequent thereto. Only at the time of filing of the E.A. he has taken such an objection.
26. The contention of the appellant that the sale was adjourned on a number of occasions and so for each and every time of sale , a notification has to be issued cannot be accepted. Even according to the evidence of the appellant himself, the sale was adjourned from time to time and on all the adjouned dates of sale, the same was adjourned at his request. The evidence on record further discloses that the interval between one adjournment and the other is of less than thirty days' duration. As per the provisions of Order 21, Rule 69(2) CPC if the sale is adjourned by more than thirty days then only a fresh sale publication has to be made, and if the adjournment of sale is of less than thirty days' duration, no such fresh publication is necessary. On this point it is useful to quote the following observations of Jagannadha Rao., J (as His Lordship then was) in T. Rambabu vs. V. Ramavathi (1988(1)ALT 987): (paragraphs 13 and 14):
"It is true that the sale was initially posted to 21.8.1979 and was subsequently adjourned on account of the various petitions that were being filed by the petitioner. The sale was ultimately held on 15.7.1980. In between, there were several adjournments of the sale, but admittedly each adjournment is within thirty days. A reading of the provisions of Order 21, Rule 69(2) CPC will disclose that what is important is the interval between each adjournment of sale. It is not permissible to take the aggregate of all the adjournments.
In any event, as pointed out by a Division Bench of Madras High in Subbamma vs Satyanarayanamurthy (AIR 1943 Mad. 739), even if the sum total of the adjournments exceed thirty days the sale cannot be treated as illegal or as a nullity. It would, at the most, amount to a mere irregularity. It is necessary for the applicant to show substantial injury and that too the said injury flowed from the material irregularity."
27. The important question to be considered is, even if there is any irregularity in publication of sale notification in the newspaper, whether it has substantially affected or caused injury to the appellant. The conduct of the appellant is that at the time of publication or on the subsequent dates of adjournments of sale, he has not taken any objection regarding publication of sale notification. The appellant has not established as to how substantially he was affected by publishing the sale notification in the newspaper, "Radhakrishna". Therefore, the contention of the appellant regarding the irregularity in publication of sale notification is rejected. The 2nd contention is therefore rejected.
28. In Re Contention No.3:- Second respondent (Saripalli Suryanarayana Raju) is the father of first respondent/decree holder/first respondent (Rudraraju Subbamma). The case of the first respondent-decree holder is that she is a widow and residing in a separate house in the same village (Mandalaparru) in which her father/2nd respondent is residing. She has not participated in the auction. So, even though the decree-holder and auction purchaser are related to each other, so long as the property is not sold at a value below the value fixed by the court resulting in substantial injury or hardship to the appellant, the appellant cannot find fault with the purchase made by the 2nd respondent. The Hon'ble Supreme Court in P.K. Rao v. V. Sitarattamma held that so long as any substantial injury is caused in judicial sale, the court should not interfere or set aside such a sale. In this case, in addition to the auction-purchaser/2nd respondent, two more independent persons also participated in the auction. R,.W.3 is one of such participants. There is competitive bidding. All these aspects show that the sale is conducted in a proper way. Therefore, the 3rd contention of the appellant is without force.
29. In Re Contention No.4:- The contention of the appellant is that there is no beat of time tom in the village about the sale.
30. It is nobody's case that they are not aware of the E.P. proceedings and the subsequent dates of adjournment of sale. Eventhough PW.2 has stated in chief-examination that there is no beat of tom tom in the village about the sale in question, he admitted in cross-examination that most of the time he will be in the fields only. On the other hand, RW.2 one of the witnesses examined by the respondents, and who has also participated in the court auction stated in his evidence that he heard the beat of tom tom about the sale of the property in question. His evidence is to the effect that on the date of auction, five bidders were present and three of them have participated in the auction and the sale was knocked down in his favour for Rs. 69,000/-. Except the self-serving statement of the appellant that there was no beat of tom tom, the appellant has not adduced any other evidence to establish that the beat of tom tom was not properly made or he is any affected by the alleged absence of such a beat of tom tom. Hence, this contention is without merit.
31. In Re Contention No.5:- The contention of appellant is that the land in question is a double crop wet land and the total value of the same was Rs. 1,50,000/- cannot be accepted, in view of the evidence of RW.3 and Ex.B.2.
32. RW.3 is a neighboring land-owner of the appellant. He filed Ex.B.2, certified copy of the sale deed which shows that he has purchased 0-46 cents of land in 1992 at the rate of Rs. 23,000/- per acre. In this case, the value of the land was fixed by the Court Amin as Rs. 50,000/-. The court below has fixed the upset price of the same at Rs. 60,000/-. The evidence of R.W.1 and the documents Exs.B.1 and B.2 amply establish that the value of the land in question at the relevant point of time was around Rs. 20,000/- to Rs. 25,000/- per acre. Moreover, the appellant has not taken the objection regarding the value of the land at the time of sale notification or subsequent thereto. That circumstance also shows that the value fixed by the court below is proper.
33. In view of the above reasons, I do not find any illegality or irregularity in publishing and conducting the sale. The appeal is therefore dismissed. No costs.