Karnataka High Court
Smt. Hirabai vs Hanumath Krishnaji Bhide on 17 April, 1996
Equivalent citations: ILR1996KAR3560, 1996(7)KARLJ383, 1996 A I H C 5388
JUDGMENT Chandrashekaraiah, J.
1. This appeal is against the order dated 6.11.1995 passed on IA-I in Execution petition No. 395/94, by the Principal Civil Judge, Bijapur.
2. This appeal is by Judgment-debtor No. 14. The facts of this case are:-
Respondents-1 to 4 are the decree holders. They have obtained the decree as against the appellant and other 13 judgment-debtors. After obtaining the decree, the decree holders instituted execution proceedings for recovery of the amount due under the decree. In that process were brought the properties belonging to the judgment-debtors were brought for sale. Three items of properties were brought to sale i.e., land measuring 8 acres in survey No. 4/1, 13 acres 4 guntas in survey No. 24/2 and 6 acres 1 gunta in survey No. 23/2 of Hanchinal village, Bijapur District, which belong to the judgment-debtors. Out of the above said three items only land measuring 8 acres in survey No. 4/1 was sold in public auction held on 26.8.1995. After the sale the appellant-judgment-debtor No. 14 filed an application under Order 21 Rule 90 CPC and prayed for setting aside the sale. The auction purchaser who is respondent-5 in this appeal filed his objections to the application filed by the judgment-debtor No. 14. The Executing Court by its order dated 6.11.1995 rejected the application filed by the appellant under Order 21 Rule 90 CPC. The said order is called in question by the appellant.
3. In the execution proceedings there are about 14 judgment-debtors. Appellant No. 1 is one of the judgment-debtors who challenged the impugned order passed by the executing Court. Sri Jaykumar S Patil, appearing for the appellant contended that the Trial Court rejected his application holding that the application filed by the appellant is not maintainable as he had not taken the said objections before the sale.
4. In the affidavit filed along with the said application the appellant contended that in the sale proclamation the value of the property has not been mentioned and further the Executing Court ought to have ascertained whether the entire property was to be sold or a portion to be sold for the purpose of satisfying the amount due under the decree. If there is no application of mind on these points then the sale held is vitiated as contemplated under Order 21 Rule 64 CPC.
5. The Learned Counsel for the respondent in reply to the said contention submitted that there is no such irregularity in the conduct of sale and there is no substantial damage or injury is caused to the appellant even assuming that there is some irregularity so as to invalidate the sale held by the Court. However, it is also contended that the appellant having not taken all these objections before the sale he is estopped from raising such contentions after the sale.
6. In view of these rival contentions, the point that arises for consideration in this appeal is:
"Whether the Executing Court was right in rejecting the application under Order 21 Rule 90 CPC?"
7. The properties attached when brought to sale by the Executing Court, the Court is required to issue a proclamation for sale by public auction. Order 21 Rule 66(2) CPC., reads as follows:-
"Such proclamation shall be drawn up after notice to the decree holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible-
a) the property to be sold; or where a part of the property would be sufficient to satisfy the decree such part;"
The first proviso to Rule 66 of Order 21 CPC reads thus:-
"Provided that where notice of the date for settling the terms of the proclamation has been given to the judgment-debtor by means of an order under Rule 54, it shall not be necessary to give under this rule to the judgment-debtor unless the Court otherwise directs;"
A reading of the above proviso, it is clear that the Court before issuing the proclamation of sale shall settle the terms of proclamation after notice to the judgment-debtor. The appellant has not stated in his application filed under Order 21 Rule 90 CPC., that he was not served with the notice calling upon him to file his statement proposing the terms to incorporate in the sale proclamation. That being so, it is to be held that he was served with notice as contemplated under the proviso to Order 21 Rule 66 CPC. When such being the case it is the duty of the judgment-debtor to suggest his terms so as to incorporate the same in the sale proclamation. The appellant has not suggested any terms for the purpose of settling terms of the sale proclamation. Therefore, it is not open for the appellant to contend that the value of the property should have been mentioned in the sale proclamation or the Court should have applied its mind in order to ascertain whether the entire property to be sold or a portion of it to be sold for the purpose of satisfying the decree.
8. The Learned Counsel for the appellant relied upon the decision of the Supreme Court in the case of AMBATI NARASAYYA v. M. SUBBA RAO AND ANR., The Supreme Court in this Judgment has held that there is a duty cast upon the Court under Order 21 Rule 64 CPC to sell only such property or a portion thereof as necessary to satisfy the decree. It is a mandate of the legislature which cannot be ignored. The Learned Counsel relied upon another decision of the Supreme Court in the case of DESH BANDHU GUPTA v. N.L. ANAND & RAJINDER SINGH, , wherein it held as follows:-
"The total absence of drawing up of the proclamation of sale and settlement of its term by judicial application of mind renders the sale a nullity being void, it is covered by Section 47. The Code has taken special care charging the duty on executing Court and it is a salutary duty and a legislative mandate to apply its mind before settling the terms of proclamation and satisfy that if part of such property as seems necessary to satisfy the decree should be sold if the sale proceeds or portion thereof is sufficient for payment to the decree-holder or the person entitled under the decree to receive the amount and so much of that property alone should be ordered to be sold in execution."
9. A reading of the above said two decisions it is clear that the Court must apply its mind before ordering the property to sale in order to satisfy the decree. In the event if the judgment-debtor suggests any terms regarding the value of the property or regarding the sale of portion of the property then only there is a duty cast on the Court to apply its mind and decide whether a portion of the property is to be sold or the entire property is to be sold in order to satisfy the decree. As the judgment-before has not suggested any of his terms before issuing the safe proclamation, it is not open for him to contend that the Court has not applied its mind.
10. In this case as stated earlier three items of properties were attached and ordered to be sold in the execution case. Though three properties were ordered to be sold, what has been sold by the Court Bailiff is only one item of the property which is a land measuring 8 acres in survey No. 4/1. In the auction held on 26.8.1995, respondent-5 has offered the highest bid of Rs.6,45,000/-. The decree has been executed for recovery of Rs. 3,33,816/-. Just because the property sold in the execution had fetched more value than that of the decretal amount, it cannot be said that the executing Court has committed any illegality or irregularity. Further, it cannot also be said that the Court has not applied its mind regarding sale of portion of the property since what has been sold is one item of the property out of the property out of the three items which were attached in the proceedings.
11. The Executing Court declined to set aside the sale solely on the ground that the grounds which he had taken in the application could have been taken much before the date of sale. In support of this contention the Advocate for the respondent relied on the decision in the case of KAPIL SIDDANGOUD v. GANGAVVA SIDDAPPA AND ANR., 1988(3) Kar.L.J. 360, wherein this Court has held that the judgment-debtor did nothing from the time when he was served with the proclamation of sale till the sale was about to be confirmed and therefore the Court rejected the petition.
12. In the instant case also the sale proclamation was issued on 28.7.1995. Prior to the issue of the sale proclamation as observed earlier appellant has not filed any statement suggesting the terms for settling the sale proclamation. Even after the sale proclamation though it was within his knowledge has not filed his objections till the date of sale and he filed application only after the sale was held by the Court. Therefore, following the above decision I am of the view that the appellant is not entitled for any relief as he had not taken steps as required under the law.
13. Order 21 Rule 90(2) CPC reads thus:-
"No sale shall be set aside on the ground of irregularities 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."
A perusal of the order sheet maintained by the Executing Court shows that the appellant filed an application under Order 21 Rule 90 CPC and in the said application the Court adjourned the case for filing objections to the said I.A., on 30.9.1995 the respondent filed objections to the IA. Thereafter the matter was adjourned for evidence. On 20.10.1995 at the request of the Advocate for the appellant the case was adjourned for evidence and hearing. On 31.10.1995 the Advocate appearing for the appellant submitted that his objections may be taken as his arguments. Accordingly, the Court passed the final order on the application filed under Order 21 Rule 90 CPC. The above said facts clearly disclose that though opportunity was given to the appellant to give evidence to prove either fraud or irregularity he has not availed of that opportunity and proved the fraud or irregularity as alleged in his application. Therefore, there is no reason to set aside the sale on the ground of any irregularity or fraud in publishing or conducting the sale.
14. On 8.4.1996 the Court orally suggested to the counsel for the appellant to pay the amount due under the decree along with the solatium at 15% paid by the auction purchaser for which the auction purchaser has no objection to set aside the sale provided he has been paid the amount as suggested by the Court. For this suggestion the counsel for the appellant agreed to pay the amount as suggested provided some time is given to him. Accordingly, the case was adjourned to 16.4.1996 with an understanding that the appellant shall pay the amount with solatium. On 16.4.1996 the Advocate submitted that on account of the communication gap between him and his client he was not in a position to say whether his client is willing to deposit the amount as directed by the Court. This submission in my view is only to avoid payment and drag on the proceedings. Though the indulgence was shown by this Court to the appellant he has not made use of the said situation to save the property. Hence, I find no reasons to interfere with the order passed by the Trial Court.
15. Accordingly, the appeal is dismissed with costs of Rs. 1000/-.