Madras High Court
P.S.S. Sathappan vs Andhra Bank Ltd. And Ors. on 8 October, 1990
Equivalent citations: (1991)2MLJ9
ORDER Srinivasan, J.
1. The appeal was in the list for final hearing on 21.4.1988 and learned Counsel who was on record at that time reported no instructions; the party's name was called and the appellant did not appear. Hence, the appeal was dismissed on that date.
2. C.M.P. No. 9919 of 1990 has been filed for set. ting aside the order of dismissal dated 21.4.1988. It is stated in the affidavit that at the time when the appeal was filed M/s. M.N. Padmanabhan and R. Singaravelan had filed vakalath for the appellant and on 12.1.1987 they had given consent for change of vakalath. It is further stated that on 19.1.1987 a vakalath was filed by M/s. M. Shamdoss and Thulasidoss, Advocates, Madras. But, admittedly no application was filed for revocation of vakalath given already to M/s. M.N. Padmanabhan and R. Singaravelan. Under Order 2, Rule 4(3) of the Appellate Side Rules, the Registrar is empowered to order change of practitioners on application made on stamped petition. Though no petition was filed by the appellant or his new counsel M/s. M. Shamdoss and Thulasidoss the Registry simply accepted the vakalath filed by M/s. M. Shamdoss and Thulasidoss and kept it along with records without making any entry of the fresh vakalath. Accordingly, the vakalath of M/s. M.N. Padmanabhan and R. Singaravelan continued to be valid and the Registry was right in not recognising the vakalath of M/s. M. Shamdoss and Thulasidoss and making entries in the registers. The Registry is also right in showing the names of M/s. M.N. Padmanabhan and R. Singaravelan as counsel for the appellants in the cause list when the case was posted in the list for disposal.
3. At the time when the appeal was dismissed as stated above, M/s. Shamdoss and Thulasidoss did not appear before Court and inform the Court that they were representing the client; nor did the appellant inform M/s. M.N. Padmanabhan and R. Singaravelan that he had engaged M/s. Shamdoss and Thulasidoss after M/s. Padmanabhan and R. Singaravelan had given consent for change of Vakalath.
4. Hence, there is no necessity for this Court to entertain this application, which has been filed alter a period of more than two years. When the application came up for hearing, I felt it better to hear the appeal on merits and dispose of the same. Consequently, the petition for setting aside the order of dismissal dated 21.4.1988 was also posted along with the appeal to-day and the appeal was heard on merits. It should also be mentioned that counsel who' are appearing for the appellant to-day are not M/s. Shamdoss and Thulasidoss. These counsels filed their vakalath on 2.1.1989 and they too have not filed an application for change of practitioners.
5. It is seen that the Registry has been simply accepting vakalaths with endorsements of consent for change of practitioners without stamped petitions for orders. This practice is clearly against the rules and it is not permitted in law. The Registry has been adopting this practice and counsel have also been ignoring the rules. A petition for revocation of vakalath or for change of practitioners is absolutely necessary and unless such a petition is filed, the vakalath already on record would continue to be valid. Only such counsel's name would appear in the record. I have issued directions to the Registry that hereafter no change of vakalath shall be accepted unless there is an application for an order for change of practitioners. This should be strictly followed by the Registry hereafter.
6. Coming to the merits of the appeal, it is against an order dismissing the application for setting aside the Court auction sale. The appellant, who is the son of the judgment debtor, filed the application under Order 21, Rule 90, Code of Civil Procedure. He raised various grounds challenging the validity of the sale. All of them related to the description of the property in the proclamation of the sale and the value of the property fixed by the Amin as accepted by the Court. The Court below has rejected all the objections raised by the appellant and dismissed the application.
7. In the appeal it is contended by learned Counsel for the appellant that the Court auction sale was vitiated by the following circumstances:
1. The property sold was not accurately described in the sale proclamation and the description is absolutely vague.
2. The property is really a running business and it should have been sold only at the end as last item, if the sale of the other items has not realised the amount due to the decree-holder.
3. The D. No. of the property is given wrongly as 16/2 whereas there is no property bearing D. No. 16/2.
4. The property that was sold was not attached in the execution proceedings earlier and the sale is, therefore, not valid.
5. The appellant is entitled to 1/2 share in the property, as it is joint family property belonging to himself and the judgment-debtor, his father.
8. As regards the objections 1 to 4, they should have been raised before the proclamation of sale was settled by Court. It is not open to the applicant under Order 21, Rule 90, Code of Civil Procedure, to raise these objections against the validity of the sale. Under Sub-rule (3) of Rule 90 of Order 21 of the Code of Civil Procedure, it is provided that no application to set aside the sale shall be entertained upon any ground which the applicant can take on or before the date on which the proclamation of sale was settled. Hence, none of these objections is available to the appellant.
9. Learned counsel contends that the appellant was not a party to the suit or the execution proceedings, and it is, therefore, open to him to raise these objections in the application under Order 21, Rule 90 of the Code of Civil Procedure. While on the one hand, the appellant wants to claim rights as a third party, on the other, he wants to have the sale set aside as a person interested in the property. If the appellant is a third party, he is not entitled to question the sale in these proceedings. If it is otherwise, the plea is not available to him because of Order 21, Rule 90 of the Code of Civil Procedure. Admittedly, he has filed a suit for partition in C.S. No. 188 of 1972 claiming one half share in the property. It is not open to the appellant now to say that he being a third party, is entitled to raise objections which could have been put forth before the Court on or before the date of settlement of proclamation.
10. The main objections raised about the half share is found against by the Court below on the ground that the materials on record do not prove that the appellant is entitled to one half share in the property. However, the question does not strictly arise in the applications under Order 21, Rule 90 of the Code of Civil Procedure, and he ought not to have taken that objection here. Even assuming, the appellant is entitled to one half share, he having filed the suit for partition in C.S. No. 188 of 1972, should work out his rights therein. If the appellant succeeds in C.S. No. 188 of 1972 in proving that the suit property is joint family property and that he was entitled to one half share therein, certainly the other question viz., whether the debt in question is binding on the appellant will also be decided in that suit. Hence, it is not necessary to hold that the appellant is not entitled to half share in the suit property when the matter will have to be decided in the suit O.S. No. 188 of 1972, which is already pending.
11. I have gone through the evidence as well as the order of the Court below. I find, the Court below has considered the entire evidence on record and came to the clear conclusion that the sale is not vitiated by errors. The more important point is that under Order 21, Rule 90 of the Code of Civil Procedure, a sale cannot be set aside unless upon the facts proved, the Court is satisfied that substantial injury is caused to the judgment-debtor by the sale. In this case, the evidence on record is not sufficient to prove that the property is worth much more than the value for which it was sold in Court auction. The appellant has examined besides himself, four witnesses, one of them being an Engineer, who claimed to have valued the property and submitted a report of valuation. He has given evidence as P.W. 3. He admitted in the evidence that the particulars regarding the property are given to him by the Manager, but he admits that he does not know who the manager was. So, neither his report nor his evidence is acceptable as sufficient to prove the value of the property. He admits that he has given the report on the basis of notes of the particulars, which he obtained from the manager, but the notes have not been filed before the Court. He admits that he did not peruse any document relating to the property for fixing the value of the property. He did not ascertain the yearly income that can be obtained from the property. He admits that he is not qualified to value the machinery and he filed the same only by experience. In view of evidence of P.W. 3, his report cannot be accepted and the claim made by the appellant that the property is worth much more than the amount for which it is sold is not true.
12. Then, reliance has been placed on the oral evidence of the appellant. The appellant is interested in exaggerating the value of the property. He has not produced any document with regard to the value of the property and so, his evidence is not acceptable. P.W. 1, an accountant in the estate, claiming to be personally acquainted with the properties deposes that the property is worth Rs. 30,000 per cent. But he admits in the cross-examination that he does not know the value for which it has been sold. P.W. 4 claims that the property is worth Rs. 50,00,000, but he is not a person competent to value the property and he admits that he is related to the judgment-debtor as his uncle's son. He speaks about a transfer which took place in 1972. His evidence does not prove the value of the property.
13. Thus, the entire evidence let in by the appellant is not sufficient to prove that the property is more valuable than the price it fetched in the court auction sale.
14. In these circumstances, there is no justification for interfering with the order of the Court below. Consequently, the appeal fails and is dismissed with costs. C.M.P. No. 9919 of 1990 stands allowed.