2013 Supreme(Kar) 1406

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Aravind Kumar, J.
Y. Rupla Naika by his GPA holder Sri Sevalal Sangana Basava Swamiji Since Dead by his Lrs. - Appellant
Vs.
Mohammed Musthafa by his GPA holder Mohammad Siraj, Tajmal Ahamed, Sri. K.C. Kumar and Sri. B. Yogesha - Respondent
M.F.A. No. 4538/2006 (CPC)
Decided On: 30.10.2013

Headnote:CODE OF CIVIL PROCEDURE, 1908 - Order 21, Rule 54(2): [Aravind Kumar, J] Places for notification of sale mentioned in sub-rule are not alternate places but are in addition to each other.

       CODE OF CIVIL PROCEDURE, 1908 - Order 21, Rule 90 r/w Section 151: [Aravind Kumar, J] Setting aside of court sale - With permission of Court Decree Holder participated in the auction and he was the highest bidder - Held, under Rule 90 more irregularity in conduct of sale is not enough to set aside the same and the applicant must also establish having suffered substantial injury on account of such irregularity or illegality as the case may be. Mere substantial injury without material irregularity is not enough, even as material irregularity is not linked directly to inadequacy of the price is insufficient to set aside the sale. Hence, if the executing Court without examining as to whether price offered is too low and a better price could have been fetched and sale has been conducted in a perfunctory manner than both the ingredients namely substantial injury as well as material irregularity can be held to be present and sale can be set aside and not otherwise. The applicant has to prove to the satisfaction of the Court that he has suffered substantial injury as a result consequence of the irregularity in the conduct of sale. The word ’substantial injury’ cannot be put on an abstract principle. It varies from case to case and ahs to be viewed from the angle of substantial justice or ensuring there is no miscarriage in the administration of justice. Technicalities has to yield to substantial justice. Executing Court while adjudicating the said application has not even made an attempt to find out as to whether there is any truth in what has been stated by the judgment debtor and it has not even examined as to whether Sale proclamation issued is in accordance with Order 21, Rule 66 and whether sale has to be set aside on account of alleged irregularity. The Executing Court has failed to find out as to whether the valuation furnished by judgment debtor had been indicated in the sale proclamation or not and on account of not indicating the sale price it had result in substantial injury to Judgment debtor. That apart decree holder having sought for permission to participate in the bid was the only bidder who participated in the Court auction conducted by the Executing Court through its bailiff. Undisputedly, when Court sale had been fixed by the executing Court, no notice had been issued to the bidders who participated at spot auction. This exercise would have also enable the Executing Court to ascertain as to whether they could have matched the price offered by the decree holder and this exercise if undertaken would have fetched better price or fair market value of the property in question. Even this exercise was not undertaken by the Executing Court. In the instant case the endorsement made in the sale proclamation by the Court bailiff would indicate that sale proclamation was published by tom tom on and a copy was affixed on the Court notice board and there is no mention with regard to affixture of copy of sale proclamation on the notice board of Grama Panchayat. Places of affixture prescribed under this sub-rule are not alternate places and they are in addition to each other. When it is mandatory on the part of the Executing Court to indicate the value furnished by judgment debtor in Column No. 6 of Form No. 29, failure to furnish the said valuation would be pointer to the fact that decree holder was intending to knock off this property for a throw away price. In fact sale proclamation does not even contain the value of the property to be sold. Judgment debtor along with the application filed under Order 21, Rule 90 of CPC had enclosed the certificate of valuation issued by the jurisdictional Sub-Registrar indicating the market value of the property in question as well as adjacent properties that was prevailing as on date of sale proclamation and non-consideration of this aspect by the Executing Court has resulted in substantial injury caused to Judgment debtor on account of such material irregularity. Sale cannot be sustained. Application of Judgment-Debtor under Order 21, Rule 90 was allowed. Sale was set aside. Matter remitted to Executing Court to conduct fresh sale in accordance with law.