Exercise of power to order sale.

E.J. Bellie, J.

1. This second appeal is by the mortgagors who filed the suit. It appears the mortgaged property has been sold in auction under Section 69-A of the Transfer of Property Act and in that auction it was sold to the second defendant. The mortgagee, is the first defendant.

2. The plaintiff-mortgagors filed the suit before the auction sale was registered for the relief of redemption after scaling down the debt under the Provisions of the Tamil Nadu Debt Relief Acts and for a declaration that the auction sale held on 8.10.1977 is null and void and for consequential relief of injunction restraining the first defendant mortgagee from executing a sale deed. According to the plaintiffs they are joint owners of the mortgaged property; it was mortgaged under a registered deed on 20.10.1965 in favour of the first defendant for a sum of Rs. 3,500 agreeing to pay interest at 12 per cent per annum; the plaintiffs have till 20.9.1977 paid to the first defendant-mortgages several sums in monthly installments agreggating to in all Rs. 7,025; from the date of mortgage till 20.9.1977 the interest works out to Rs. 5,005 and it fell short of Rs. 1,480; for recovery of this the first defendant without the requisite statutory notice had brought the property to auction through the auctioners' Galley and Company; the auction sale was not properly or adequately advertised and therefore there was only a solitary bidder viz., the second defendant and he in collusion with the auctioneers knocked down the property for Rs. 11,000 which is too small an amount when compared to the real worth of the property; and the plaintiffs are debtors within the meaning of Tamil Nadu Debt Relief Act 38 of 1972 and Act 16 of 1976 as amended by. Act 40 of 1978 and by virtue of these Acts on the date of auction i.e., 8.10.1977 there was no amount due from the plaintiffs to the first defendant. Therefore the auction sale was without any legal justification.

3. The first defendant-mortgagee filed a written statement in which he has admitted receipt of Rs. 7,025 as alleged in the plaint. He stated that he is a lay man and he did not know about the legal technicalities and the mode of calculating interest. He did not know that statutory notice must be sent. He would admit that the price fetched in the auction is too low. He does not know whether the plaintiffs are debtors with in the meaning of Debt Relief Acts. He has no objection for the debt being scaled down and he has no objection for the suit being decreed as prayed for.

4. The second defendant in his written statement contended that there was notice of publication. It is contended that there were number of bidders in the auction. The plaintiffs were already aware of the auction but they did not make any attempt to prevent it. He further contended that the plaintiffs are not debtors within the meaning of the Debt Relief Acts. The worth of the property is only Rs. 10,000 Hence the suit is liable to be dismissed.

5. The trial Court (IV Assistant Judge, City Civil Court, Madras) framed three issues as follows:

1. Are not the plaintiffs entitled to scaling down of the mortgage debt?

2. Is not the mortgage discharged?

3. Are not the plaintiffs entitled to the relief prayed for?

It held that the plaintiffs are not entitled to scale down the mortgage debt and the mortgage debt is not discharged and that the plaintiffs are not entitled to any relief. In the result it dismissed the suit.

6. On appeal by the plaintiffs the first appellate Court (XI Additional Judge, City Civil Court, Madras) concurred with the findings of the trial Court and held that the auction sale was quite valid. In the result it discussed the appeal.

7. In this second appeal it is contended that there was no statutory notice by the mortgagee to the mortgagors as required under Section 69 of the Transfer of Property Act and therefore the sale is invalid. Secondly it is argued that the mortgages himself has filed a written statement that he has receive