Madras High Court
M.Rangasamy vs R.C.Ramasamy on 9 March, 2006
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09/03/2006
CORAM
THE HON'BLE MR.JUSTICE M.JAICHANDREN
CRP. (NPD) No.2286 of 2005
and
C.M.P.No.20592 of 2005
M.Rangasamy .... Petitioner
-Vs-
1. R.C.Ramasamy
2. S.A.Jaganathan ... Respondents
PRAYER: Civil Revision Petition is filed under Section 115 of Civil
Procedure Code against the Order and decretal order of the learned
Subordinate Judge, Namakkal, in C.M.A.No.16 of 2005, dated 14.09.2005 ,
confirming the Order and Decretal Order of the learned District Munsif,
Rasipuram, in R.E.A.No.178 of 2004 in R.E.P.No.243 of 1995 in O.S.No.176 of
1983, dated 23.06.2005.
!For petitioner : M/s. Dr.R.Gopinath,
S.V.Karthikeyan & G.Chandrasekar
^For respondents: Mr.N.Manokaran
:O R D E R
This Civil Revision Petition is filed under Section 115 of Civil Procedure Code against the Order and decretal order of the learned Subordinate Judge, Namakkal, in C.M.A.No.16 of 2005 dated 14.09.2005, confirming the Order and Decretal Order of the learned District Munsif, Rasipuram, in R.E.A.No.178 of 2004 in R.E.P.No.243 of 1995 in O.S. No.176 of 1983 dated 23.06.2005.
2. Heard the learned counsel for the petitioner as well as the respondents.
3. The case of the petitioner is that the first respondent herein filed O.S.No.176 of 1983 on the file of District Munsif, Rasipuram, to recover Rs.27,180/-. The suit was decreed and the first respondent had filed an execution petition in R.E.P.No.243 of 1995 and brought the properties of the petitioner, namely, the mill and the house, to court auction. The properties were taken in auction by the second respondent for a sum of Rs.75,400/- and the sale was also confirmed. The Auction purchaser filed an application R.E.A.No.178 of 2004 in R.E.P.No.243 of 1995 for delivery of possession.
4. The petitioner further states that even before the delivery of possession was effected, he filed R.E.A.No.1324 of 2001 in R.E.P.No.243 of 1995 under Section 47 of the Civil Procedure Code to set aside the sale. When the application was posted for hearing on 18.08.2003, his counsel could not attend the hearing and therefore, the petition was dismissed. He further states that he had filed an application to restore the application E.A.No.1324 of 2001 which was dismissed for default. While the said application was pending, the Executing Court directed the delivery of property to the second respondent herein. The petitioner has also filed Civil Miscellaneous Appeal. No.16 of 200 5, against the order made in R.E.A.No.178 of 2004 in R.E.P.No.243 of 1995.
5. In his affidavit filed in the Civil Miscellaneous Petition.No.20 592 of 2005, he has stated that the property is worth over Rs.10,00,0 00/- and the auction was taken for a meagre amount of Rs.75,400/- and that the appellate Court has jurisdiction to set aside the order of the District Munsif and that there is no time limit for moving an application. He has further averred that without disposing of his application for restoration, the order for delivery of possession ought not to have been passed.
6. The petitioner has further stated in his affidavit that the respondents had contended that an appeal is not maintainable and that only a revision had to be filed. Further, the learned Sub-ordinate Judge, Namakkal, had dismissed the appeal holding that the appeal was not maintainable. Therefore, the petitioner was constrained to file the present Civil Revision Petition.
7. On the contrary, the case of the respondents is that the first respondent herein had filed the suit in O.S.No.176 of 1983 for recovery of money as against the petitioner and that the suit was decreed as early as 18.04.1984. He further states that the petitioner herein having suffered a decree, had failed to pay the decree amount, which necessitated the first respondent / decree holder to file the petition to execute the said decree. Accordingly, on 28.07.1995, he had filed R.E.P.No.243 of 1995 to attach and to bring the property of the Judgment debtor for sale by court auction to realise the decree amount. He further states that the petitioner having received the notice, had failed to file counter the statement in R.E.P .No.243 of 1995 and hence, he was called absent and set exparte on 31.01.1996. Thereafter, the properties were attached on 06.03.1996.
8. It is further stated that the first respondent /decree holder had filed the sale papers and the proclamation of sale notice was issued on 03.10.1996 and the same was refused by the petitioner/ Judgment debtor on 06.12.1996. Hence, he was set ex parte and the sale proceeded with on 20.01.1997.
9. It is further stated by the second respondent herein that on 20.0 2.1997, the Executing Court fixed the upset price at Rs.4,00,000/- and ordered for sale. Since there were no bidders, during that auction, the upset price had been reduced on various occasions in the subsequent auctions and the details are as follows:-
"09.11.1997 R.E.A.No.1363 of 1997 the amount has been reduced to Rs.3,00,000/-
27.03.1998 R.E.A.No.294 of 1998 the amount has been reduced to Rs.2,50,000/-
19.08.1998 R.E.A.No.1148 of 1998 the amount has been reduced to Rs.2,10,000/-
16.04.1999 R.E.A.No.2015 of 1998 the amount has been reduced to Rs.1,50,000/-
16.11.1999 R.E.A.No.1743 of 1999 the amount has been reduced to Rs.1,25,000/-
17.04.2000 R.E.A.No.356 of 2000 the amount has been reduced to Rs.1,00,000/-
17.10.2000 R.E.A.No.1629 of 2000 the amount has been reduced to Rs.75,000/-"
10. The second respondent further states that the upset price was finally reduced to Rs.75,000/- in view of the fact that no one offered to accept the upset price fixed by the Court on the earlier dates fixed for the sale. He further states that the upset price had been reduced to Rs.75,000/- only after giving notice to the petitioner / Judgment Debtor but he did not attempt to question the same at any point of time and in the manner provided by law. He further states in pursuance to the order, dated 17.10.2000, the sale was held on 20.12.200 0 wherein he had participated and the amount had been accepted in the court auction sale, and on his depositing the 1/4th of sale consideration of Rs.18,850/- , the matter was posted for confirmation of sale on 06.04.2001 and even after the sale, opportunity was available to the petitioner under law in the form of Order 21, Rule 89, Code of Civil Procedure to deposit the entire sale amount. Instead, the petitioner sought to set aside the order in R.E.A.No.1324 of 2001 with the mala fide intention of dragging on the matter and had managed to drag on the matter for nearly two and half years. Thereafter, the said petition was dismissed for default on 18.08.2003. In view of the said dismissal of the petition filed under Section 47 of Code of Civil Procedure, the Executing Court was pleased to confirm the sale on 18 .08.2003 and had also issued the sale certificate as provided for under Order 21 Rule 94 of Civil Procedure Code.
11. He further states that the expression "an application is made and disallowed " in Order 21 Rule 95 Code of Civil Procedure covers not only a case where the application was disallowed on merits but also disallowed for any other reason, such as for default.
12. The second respondent further states that the right, title and interest of the revision petitioner/Judgment Debtor passes on the court sale and he has ceased to be the owner of the property on the date of confirmation of the sale by the court and that alleged irregularity, if any, in the execution proceedings, are cured by the sale certificate. Accordingly, on issuance of the sale certificate, the second respondent's title in the property becomes complete and he is entitled to apply for possession of the property purchased. He further states that, on 21.10.2003, he filed a petition for possession under Order 21 Rule 95 Code of Civil Procedure in R.E.A.No.178 of 2004. The petitioner herein entered appearance and filed his counter. Finally the said petition was allowed as prayed for on 23.06.2005.
13. It is also the case of the second respondent that the order granting delivery in R.E.A.No.178 of 2004 is consequential in nature and cannot be questioned before any forum, especially, when the orders made in the earlier proceedings have not been challenged by the petitioner / Judgment Debtor. He further states that except the orders made in the petition filed under Order 21 Rules 72 and 92, Code of Civil Procedure, no appeal could be entertained either under Order 43 Rule 1 (j) or under Order 41 Rule 1 of Code of Civil Procedure. He further states that the petitioner has filed an appeal under Order 41 Rule 1, Code of Civil Procedure before the Sub-court, Namakkal, in CMA.No.16 of 2005. It is his case that the order made under Order 21 Rule 95 Code of Civil Procedure is not appealable and it cannot be challenged by way of appeal and it cannot be challenged by way of an appeal. Therefore, the appeal filed by the petitioner before Sub-Court, Namakkal, in Civil Miscellaneous Appeal No.16 of 2005, dated 14.11.2005, is misconceived and not maintainable under law. Therefore, the order of dismissal of the Civil Miscellaneous Appeal by the learned Sub-Ordinate Judge, Namakkal, filed under Order 41 Rule 1 holding that the appeal as not maintainable is correct in law.
14. The second respondent also states that, it is pertinent to point out at this juncture that, at the instance of the petitioner herein, his sons, namely, R.Selvaraju and R. Arulkannan, had filed a petition to set aside the sale under Order 21, Rule 90,97,101 and Section 15 1, Code of Civil Procedure and the same was rejected by the trial Court on the ground of maintainability.
15. Aggrieved by the said rejection by the trial Court on 06.12.2005 , he filed a revision under Article 227 of the Constitution of India in Civil Revision Petition.No.2250 of 2005. It is the case of the second respondent herein that the said revision is not maintainable in law in view of the statutory bar under Order 21 Rule 90 (3) of Code of Civil Procedure.
16. It is stated by him that the said Civil Revision Petition.No.225 0 of 2005 is also pending before this court, without having been admitted, till date. It is also stated by the second respondent that the petitioner in the present Civil Revision Petition , inspite of having knowledge of the filing of Civil Revision Petition.No.2250 of 2005, has not disclosed the same before this court, while filing the present Civil Revision Petition.
In para 13 of the Counter affidavit, the second respondent has stated as follows:-.
"13. I submit that the Hon'ble Supreme Court in 2003 (8) SCC 289, was pleased to hold as follows:-
'The Courts of law should be careful enough to check the diabolical plans of the Judgment debtor and should not encourage the frivolous and cantankerous litigations causing delay and bringing bad name to the judicial system.' The second respondent also states that as per Section.65 Code of Civil Procedure, "where immovable property is sold in an execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when it is sold and not from the time when the sale becomes absolute."
17. Further, it is the case of the second respondent that there were no objections raised for the proclamation of sale and its publication under Rule 66 of Order 21 Code of Civil Procedure. He also states that no application either in the form of Order 21 Rule 90 or under section 47 Code of Civil Procedure could be entertained at this stage, especially when the petitioner / Judgment debtor had failed to avail the same at the earliest point of time and that the offer made by the petitioner to pay the decree amount or the sale price cannot be entertained at this point of time, since he had failed to avail the same by filing an application under Order 21 Rule 83 and 89 Code of Civil Procedure. Further, it is his case that an execution of sale cannot be set aside merely on the ground that the price fixed for sale is low and that it will fetch a higher price on resale and that there is a presumption in law that the price fetched at a Court sale is adequate. Further, inadequacy of price proprio vigore would not result in avoiding the sale and that the petitioner is estopped from raising such contentions at this belated stage.
18. In support of the contentions the second respondent has relied on the following decisions :-
1) In the case reported in AIR 1967 Supreme Court 608 ( Janak Raj Vs. Gurdial Singh and another) , the Supreme Court held as follows :-
"4. Before referring to the various decisions cited at the Bar and noted in Judgment appealed from, it may be useful to take into consideration the relevant provisions of the Code of Civil Procedure. So far as sales of immovable property are concerned, there are some special provisions in O.XXI beginning with R.82 and ending with R.103. If a sale had been validly held, an application for setting the same aside can only be made under the provisions of Rr.89 to 91 of O.XXI. As is well known, R.89 gives a Judgment-debtor the right to have the sale set aside on his depositing in Court a sum equal to five percent of the purchase money fetched at the sale besides the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of sale, have been received by the decree-holder. Under sub-r (2) of R.92 the Court is obliged to make an order setting aside the sale if a proper application under R.89 is made accompanied by a deposit within 30 days from the date of sale. Apart from the provision of R.89, the Judgment-debtor has the right to apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it provided he can satisfy the Court that he has sustained substantial injury by reason of such irregularity or fraud. Under R.91 it is open to the purchaser to apply to the Court to set aside the sale on the ground that the Judgment-debtor had no saleable interest in the property sold. Rule 92 provides that where no application is made under any of the rules just now mentioned or where such application is made and disallowed the Court shall make an order confirming the sale and thereupon the sale shall become absolute. Rule 94 provides that where the sale of immovable property has become absolute, the Court must grant a certificate specifying the property sold and the name of the person who at the time of sale was declared to be the purchaser. Such certificate is to bear date the day on which the sale becomes absolute. Section 65 of the Code of Civil procedure lays down that where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when it is sold and not from the time when the sale becomes absolute. The result is that the purchaser's title relates back to the date of sale and not the confirmation of sale. There is no provision in the Code of Civil Procedure of 1908 either under O.XXI or elsewhere which provides that the sale is not to be confirmed if it be found that the decree under which the sale was ordered has been reversed before the confirmation of sale. It does not seem ever to have been doubted that once the sale is confirmed the judgment-debtor is not entitled to get back the property even if he succeeds thereafter in having the decree against him reversed. The question is, whether the same result ought to follow when the reversal of the decree takes place before the confirmation of sale.
5. ...................... The Code of Civil Procedure of 1908 contains elaborate provisions which have to be followed in cases of sales of property in execution of a decree. It also lays down how and in what manner such sales may be set aside. Ordinarily, if no application for setting aside a sale is made under any of the provisions of Rr.8 9 to 91 of O.XXI, or when any application under any of these rules is made and disallowed, the Court has no choice in the matter of confirming the sale and the sale must be made absolute. If it was the intention of the Legislature that the sale was not to be made absolute because the decree had ceased to exist, we should have expected a provision to that effect either in O.XXI or in Part II of the Code of Civil Procedure of 1908 which contains Ss.36 to 74 (inclusive).
6)..................... Leaving aside cases like these, a sale can only be set aside when an application under R.89 or R.90 or R.91 of O.XXI has been successfully made.
8) ................ Under the present Code of Civil procedure, the Court is bound to confirm the sale and direct the grant of a certificate vesting the title in the purchaser as from the date of sale when no application as is referred to in R.92 is made or when such application is made and disallowed.
24) ................ it must be held that the appellant-auction purchaser was entitled to a confirmation of the sale notwithstanding the fact that after the holding of the sale the decree had been set aside. The policy of the Legislature seems to be that unless a stranger auction purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified. The code of Civil Procedure of 1908 makes ample provision for the protection of the interest of the Judgment-debtor who feels that the decree ought not to have been passed against him. On the facts of this case, it is difficult to see why the Judgment -debtor did not take resort to the provisions of O.XXI.R.89. The decree was for a small amount and he could have easily deposited the decretal amount besides 5 percent of the purchase money and thus have the sale set aside. For reasons which are not known to us he did not do so.
25) It was contended that the amendment of S.47 of the Code of Civil Procedure altered the whole situation in as much as by the Amending Act of 1956 auction purchasers are to be treated as parties to the suit.
2) In the case reported in (2001) 6 Supreme Court Cases 213 ( Rajender Singh Vs. Ramdhar Singh and others), the Supreme Court has held as follows :-
"17. The other ground for setting aside the same is the inadequacy of the price. The respondents have not alleged any fraud or material irregularity in the conduct of the court's auction-sale, whereby they suffered injustice. Mere inadequacy of the price is not a ground for setting aside the court sale. That finding of the learned Judge also is not sustainable in law. "
3) In the case reported in (2003) 8 Supreme Court Cases 289 (Ravinder Kaur Vs. Ashok Kumar and another) , the Supreme Court held as follows :-
" 22. ....... a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of court. Courts of law should be careful enough to see through such diabolical plans of the judgment-debtors to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system."
4) In the case reported in 1966 (1) MLJ 324 (M.Shanmugham Chettiar Vs. Manilal J.Sheth and others), wherein it has been held as follows :-
' The fact that the sale was not confirmed before the attachment was effected cannot make any difference. For one thing, unlike the Madras Revenue Recovery Act (II of 1864) or the Code of Civil Procedure, the Madras City Land Revenue (Amendment) Act does not contemplate either the setting aside of the sale by an application or confirmation of the sale. It cannot therefore be stated that the sale has to be confirmed before it becomes absolute. But even assuming that the sale could become absolute only after the confirmation of the sale, it is not the confirmation of sale that vests rights in the property to the purchaser. The moment the sale is held the Judgment-debtor of the erstwhile owner loses all his title and interest therein and it is the purchaser that becomes the owner thereof from the date of the sale. ............................... As soon as the title to the property vested in the purchaser, the Judgment-debtor the erstwhile owner of the property, cannot be deemed to have a saleable interest in or disposing power over this property. His interest ceased in the house when the auction purchaser obtained title to the property. The auction-purchaser could from that moment effectively dispose of that property even in the absence of a sale certificate. ................. Assuming that the sale could become absolute only after the confirmation of the sale, that does not vitally affect the position in this case as it is not the confirmation of sale that vests rights in the property to the purchaser. The moment the sale is held, the Judgment-debtor or the erstwhile owner losses all his right, title and interest therein and it is the purchaser that becomes the owner thereof from the date of the sale. .................. Further Section 65 of the Code of Civil Procedure of great assistance in this controversy. That section recites:
"Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute."
5) In the case reported in 1969 (2) MLJ 274 (T.P.Ramaswami Naidu Vs. Margabandu Mandri), it has been held as follows :-
'Where a Court auction purchaser of the property in execution of the mortgage decree applies for delivery of possession of the property, he cannot be resisted by the purchaser from the mortgagor as an independent claimant merely because he has been exonerated in the suit. On the issue of a sale certificate to the purchaser in Court auction under Order 21, rule 94, Civil Procedure Code, his title becomes perfected and complete and his right to possession unimpeachable against the parties to the suit as well as those claiming under them......................................
"On the issue of a sale certificate to the purchaser under Order 21 , rule 94 the latter's title becomes perfected and complete and his right to possession unimpeachable as against the parties to the suit as well as those claiming under them"
6) In the case reported in AIR 1975 Madras 197 (K.Krishnaswami Gounder, Vs. Palani Gounder) , it has been held as follows:-
3) The next objection of the judgment-debtor is that the sale proclamation has failed to comply with the requirement of Order 21, Rule 66 , C.P.C in two respects. In the first place, it is said that there is no compliance with the requirement of Order 21, Rule 66, subclause (2) (b) which requires the proclamation to specify the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or part of an estate paying revenue to the Government. It is said that the failure to state the revenue payable by the land that was brought to sale is a material irregularity. I am unable to agree that sub-clause (b) has any reference to land held in ryotwari tenure. Learned counsel for the appellant would cite Naganna Vs. Venkatarayalu, AIR 1945 PC 178, in support of the proposition that non-mention of the revenue payable even by a land held under ryotwari tenure could be a violation of Order 21, Rule 66 (2) (b). A reference to the ruling shows that the property that was brought to sale in that case was the North West Vallur estate consisting of about 34 villages in Kistna and West Godavari districts paying an annual peshkush of Rs.42,000/-.
This shows that the requirement of clause (b) of Order 21, Rule 66 (2) was regarded by the Privy Council as being applicable to an estate or part of an estate paying revenue to the Government and not to a land which is held in ryotwari tenure and in respect of which only kist is payable a nd not peshkush.
4. ................ It may be noted that in the present execution petition notices were issued to appellant twice and evidently because he tried to evade service, substituted service was ordered and service was held by the court to be sufficient and the appellant was set exparte and the execution proceedings proceeded with. The appellant did not file any counter to this execution petition stating the valuation of the property that was being brought to sale. ......................... if the Judgment-debtor fails to appear in an execution petition and fails to state in that execution proceedings his estimate of the value of the property, it is no part of the duty of the court to make a research into the prior proceedings or to rummage the records relating to any other proceedings between the parties in order to find out if the judgment debtor had stated the value of the property. To say that if the court fails to perform this impossible duty of conducting a research into the prior proceedings and finding out if the judgment-debtor has stated his value in those proceedings, it should be held guilty of a material irregularity is, in my view, to make a mockery of the technicalities of law without any regard for the realities in which the executing courts are called upon to function. I may also add that even if it is regarded as a material irregularity , there is no proof that as a result thereof the appellant has suffered any injury.
7) In the case reported in AIR 1981 Madras 151 ( A.U.Natarajan Vs. Indian Bank, Madras), wherein it has held as follows:-
'14. Before we go into that question, we must point out the difference between the value of a property and the upset price for a property brought for sale in a court auction. The word 'value' means as follows "to estimate or appraise as being worth a specified sum or amount; to estimate the value of (goods, property etc);to appraise in respect of value; to estimate or regard as having a certain value or worth". (Vide Shorter Oxford Dictionary Illustrated vol. 2). On the other hand, the term 'upset' in relation to price, means as follows- " stated as the lowest sum for which property exposed to auction will be sold: named as the sum from which bidding may start". (Vide Shorter Oxford Dictionary: illustrated vol. 2) The same term means according to the Concise Oxford Dictionary III Edn. 'lowest selling prince' of property in auction: reserve price' and, according to the Chamber's Twentieth Century Dictionary, "the lowest that will be accepted, at which bidding is started". From the meanings given above, it may be seen that the words 'value' and 'upset price' are not synonymous, but have entirely different meanings. Unfortunately, this distinction has not been noticed and in several cases, the word 'value' has been used with reference to upset price. The misuse of the word has afforded scope for the decree-holders in certain cases to contend that the court must exercise its power and give its own value of the property; meaning thereby that the court must fix an upset price for the property, and the judgment-debtors in certain cases, to contend that the court had no power to fix the upset price meaning thereby that the court had no authority to make its estimate of the value of the property and include it in the sale proclamation.
20. What the proviso in question lays down is that in a proclamation of sale the estimate of the value of the property as given by either or both the parties, should necessarily find a place. But, no duty was cast on the court to enter in the sale proclamation its own estimate of the value of the property. The reason for the Legislature having worded the proviso in the manner done is not far off to see. The court making an estimate of the value of the property and entering it in the proclamation of sale would become necessary only when an upset price has to be fixed for the property. Since the Legislature has now made it obligatory that the estimate of the value of the property as given by either or both the parties, should necessarily find a place in the proclamation of sale, the need for the Court to fix an upset price may not arise in all cases. The procedure indicated by P. N.Ramaswami.J. in Yellappa Naidu vs. Venugopal Naidu (1957) 70 Mad LW 815 : (AIR 1958 Mad 423) can be resorted to i.e., the sale will have to commence at the higher price given by the Judgment-debtor and, in the absence of bidders, the price will have to be progressively brought down till it reaches the figure given by the decree-holder and again raised up, depending upon the availability of bidders. If, inspite of such a procedure, the sale does not take place for want of bidders, then it is open to the court, on the application of the decreeholder, to fix an upset price for the property at a rate as near as the property would be worth in the estimation of the Court.
If, even then, the sale does not take place, the decree holder can move the executing court to reduce the upset price. It will be open to the executing court to reduce the upset price or not, depending upon the circumstances of the case, and, if a reduction is to be made, to decide the extent to which the upset price should be reduced. It is only for these reasons, the legislature should have enacted the proviso in two parts, the first part relating to the discretionary power of the court to give its own estimate of the value of the property in the sale proclamation and the second part relating to the obligation of the court to include in the sale proclamation the estimate, if any, given by either of both the parties. The first part of the proviso is in the negative and the second part, in the affirmative. The significance of the manner of drafting cannot be missed. The affirmative is used to give a mandate and the negative is used only to emphasise that the court is not under a duty to enter its own estimate in the proclamation of sale. If it was the intention of the legislature that the court should, in no circumstances, give its own estimate of the value of the property, then the wording of the first part of the proviso would have been entirely different. The legislature would have clearly mentioned that the court was precluded from making its own estimate of the value of the property and that the proclamation shall not include the estimate, if any, made by the court.
21. In some cases, the court may feel called upon, in the interests of Justice, to enter in the proclamation of sale its own estimate of the value of the property. Take for example, a case where the Judgment-debtor, for some reason has not given his value of the property and only the decree-holder has given his value and that value is grossly low. The proclamation of sale would then contain only the value as given by the decree-holder, and if the property is brought for sale, the bidding at the auction can start only at the rate given by the decree-holder and the property may be knocked off at the value given by the decree-holder or for a slightly higher amount. The result will be that the property may get sold for a very low price and the Judgment-debtor would be the loser in the bargain. To avoid such a situation, the court can certainly exercise its discretionary power under the first limb of the proviso and give its own estimate of the value of the property in the sale proclamation.'
8) In the case reported in AIR 1988 Madras 114 ( L.Balu Vs. Periasami and others), it has been held as follows:-
'7. O.43, R.1(j) makes appealable :
"an order under R.72 or R.92 of O.21 setting aside or refusing to set aside a sale" A reading of the above sub-rule clearly indicates that an appeal would lie only against two categories of orders, viz., one setting aside the sale and the other refusing to set aside the sale. Either of the above two contingencies would arise only if an application is made to set aside the sale either under R.72 or under the rules covered by R.92 of O.21 viz., Rr.89, 90 and 91. Under O.21, R.72 C.P.C a sale could be set aside when the decree-holder either bids for or purchases the property without the necessary permission of the Court. ................... When the sale is sought to be confirmed on the ground that no application to set aside the sale has been made, the question of the Court setting aside the sale or refusing to set aside the sale does not arise. When an order of confirmation is made on the ground that no application to set aside the sale has been made, it cannot be stated that such an order would come within the purview of O.43 .R. 1(j) . it is significant that the wording in O.43. R 1(j) is not general in nature so as to include all kinds of orders passed under R.92. It is limited to orders setting aside or refusing to set aside the sale. When therefore a sale is confirmed without any such contingency having arisen, viz., when no application for setting aside the sale has ever been made, it should be taken that such an order of confirmation will not come under O.43.R.1 (j) and it is not therefore an appealable order. The remedy open to the aggrieved party would be by a revision invoking the inherent powers of this Court. In the instance case, the order itself makes it clear that the sale was confirmed on the ground that no application for setting aside the sale was made in respect of items 2 and 3. The present revision, therefore, is maintainable.'
19. In the reply affidavit filed by the Civil Revision petitioner he states that under Order 43 Rule 1 (j) of Code of Civil Procedure an appeal lies against an order passed under Order 21 Rule 92 setting aside or refusing to set aside a sale.
20. It is also the case of the petitioner that Rule 95 of Order 21 provides for an application by a decree holder or auction purchaser and that only under Order 21 Rule 92 the Judgment debtor can move an application to set aside the sale. The petitioner also states that he filed the application to set aside the sale before delivery had been ordered in favour of the purchaser and therefore, the remedy available is only under Order 21 rule 92, Code of Civil Procedure.
21. On a perusal of the reasons stated in the affidavit and the counter affidavit filed on behalf of the petitioner as well as the respondent, respectively, and on hearing the arguments advanced by the learned counsel representing the petitioner as well as the respondent and on analysing the case laws cited before this court, it is found that the Civil Revision Petition No. 2286 of 2005 filed against the order made in Civil Miscellaneous Appeal.16 of 2005 by the Sub-ordinate Judge, Namakkal, stands to be dismissed for the following reasons. :-
The petitioner suffered a decree in O.S.No.176 of 1983 on 18.04.19 84. and failed to pay the decree amount necessitating the first respondent / decree holder to file a petition to execute the decree. Accordingly, on 28.07.1995 the decree holder filed in R.E.P.No.243 of 1 995 to attach and to bring the property of the Judgment debtor to court auction sale to realise the decree amount. The petitioner even after receipt of notice, had failed to file his counter statement in R.E.P.No.243 of 1995 and hence he was set ex parte on 31.01.1996. Thereafter, the property had been attached on 06.03.1996 and the first respondent / decree holder had filed the sale papers. Sale proclamation was made on 03.10.1996 and the same was refused by the petitioner / Judgement debtor on 06.12.1996. Therefore, he was set ex parte in the sale proceedings on 20.01.1997. In pursuance of the order, dated 17.10.2000, sale was held on 20.12.2000 wherein the second respondent had participated and his bid amount had been accepted by the court and after sale, on the same day, he had deposited 1/4th of the sale price of Rs.18,850/-. Inspite of an opportunity being available under law in favour of the petitioner, under Order 21 Rule 89 of Code of Civil Procedure to deposit the entire sale amount, the petitioner / Judgment Debtor had failed to do so, even when the matter was posted for confirmation of sale on 06.04.2001. R.E.A.No.1324 of 2001 filed by the petitioner / Judgment Debtor to set aside the sale was dismissed for default on 18.08.2003, and in view of the disposal of the petition under Section 47 of Code of Civil Procedure , the Executing Court had confirmed the sale on 18.08.2003. Thereafter, issue of sale certificate, as provided for under Order 21 Rule 94 Code of Civil Procedure, has also been made. In such circumstances, the learned Subordinate Judge, Namkkal, by his Judgment and decree, dated 14.09.2005, in CMA No.16 of 2005, had rightly dismissed the appeal holding that the Executing Court had rightly dismissed the petitioner's E.A after affording sufficient opportunity on several occasions and the Judgement debtor, without availing those opportunities, is now attempting only to prolong the proceedings as much as possible.
In view of the above circumstances, this Court is of the view that there is no illegality or irregularity in the Judgment and decree of the Court below, dated 14.09.2005, in CMA.No.16 of 2005, warranting interference, while exercising the jurisdiction under Section 115 of Code of Civil Procedure. Therefore, the Civil Revision Petition is dismissed as devoid of merits. No osts. Consequently, Civil Miscellaneous Petition 20592 of 2005 is also dismissed.