Scope of setting aside Court auction sale on the ground of fraud or material irregularity.

These two appeals arise out of execution proceedings in O.S. No. 10 of 1959. The appellants herein filed applications to set aside the sale in respect of two properties. The appellant in C.M.A. No. 94 of 1962 is the petitioner in E.A. No. 635 of 1961 and she is a third party interested in lot 2, and the appellants in C.M.A. No. 95 of 1962 are the petitioners in E.A. No. 637 of 1961. They are defendants 1, 3 and 4 who are interested in lot 1. They alleged in the applications that the sale was vitiated by fraud and material irregularities in the conduct of the sale, on the ground that the description of the properties were not properly given in the sale proclamation, that the sale proclamation itself was not properly published and that the properties sold in the public auction were grossly undervalued with a deliberate intention to mislead the bidders. The Court below held that there was no fraud or material irregularity in the conduct of the sale. Hence the appeals.

The facts of the case reveal that lot 1 consists of a small house and shops and lot 2 consists of shops in Madurai Town. The terms of the proclamation were settled on 18th March, 1961, lot 1 being valued at Rs. 7,000 and lot 2 at Rs. 6,000. The properties were proclaimed to be sold on 26th June, 1961. After several adjournments, lot 1 was sold for Rs. 11,600 and lot 2 was sold for Rs. 40,000 subject to a mortgage for Rs. 4,000. The appellants complain that it was the gross undervaluation of the properties in the sale proclamation that mislead the intending bidders and therefore the sale was vitiated with material irregularities in the conduct of the sale. Though the sale began on 10th July, 1961, it was continued from day to day and finally closed on 17th July, 1961. The sale was confirmed on 22nd November, 1961. The purchaser took symbolical possession in the month of December, 1961 and took physical possession in the month of June, 1962. The purchaser immediately put up a huge structure worth about Rs. 1,50,000-00. It is true that the judgment-debtors (appellants) have filed appeals. But they did not obtain stay of delivery of possession. Even though their application was dismissed on 28th March, 1962, they did not take any proceeding for stay of further construction by the purchaser. Now these appeals come up for final disposal after a period of four years.

The only question for consideration is whether the sale has been vitiated by fraud and material irregularities. According to the appellants, lot 1 was grossly undervalued at Rs. 7,000 though as a matter of fact, it was sold for Rs.11,600. Similarly, according to the appellants, lot 2 was grossly undervalued at Rs.6,000. though, as a matter of fact, it was sold for Rs. 40,000. On the facts of this case, it is clear that the judgment-debtors were not put to any loss and they were not also prejudiced, because the properties were sold for more than what they themselves expected. At the time of settling the proclamation, the appellants did not help the Court in giving a correct estimate or value of the properties to be sold. It was only the decree-holder who gave valuation of the properties, and the Court, on an approximate valuation, fixed the upset price. During the pendency of the Court-sale proceedings, one of the appellants filed an affidavit stating that he had entered into an agreement of sale with a private party in respect of lot 2 for Rs. 35,000 and requested the Court to adjourn the sale. But the Court refused to adjourn the sale, and ultimately due to keen competition this item was sold for Rs. 40,000 subject to a mortgage, and lot 2 was sold for Rs. 11,000. In the circumstances it is not possible for me to say that the judgment-debtors are seriously prejudiced by the Court sale.

But what learned Counsel for the appellants represents to me is that, if these properties were properly valued in the sale proclamation, any one of the properties would have been enough to satisfy the decree amount which wa