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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. PALANIVELU
K.J. Prakash Kumar & Others
Versus
Rasheeda Yasin & Another
C.R.P.(N.P.D.) No.2574 of 2007, C.M.P.No.1 of 2007 and V.C.M.P.No.2 & 3 of 2007
Decided On :Decided on : 10-02-2009
(B) Code of Civil Procedure, 1908(5 0f 1908)-Or.21 R.66, 90-Auction sale-Portion of property sufficient to satisfy the decree-Entire property not to be sold-Violation is a material irregularity.
The executing Court to consider the value of the property in entirety and if it finds that sale of a portion of the property would be adequate to satisfy the decree without deviation from the rules and procedures, it shall bring such portion of the property to sale. In case, if the executing court does not advert to the said rule and the entire property is brought to auction and the same was sold then the sale would get vitiated by material irregularity.
Para 12
(C) Code of Civil Procedure, 1908(5 of 1908)-Sec.47, Or.21 R.66, 90-Auction sale-Pre-sale irregularities can be challenged under Sec.47-Post sale illegalities are amenable under Or.21 R.90.
As for the applicability of Section 47 C.P.C., it is relatable to execution, discharge or satisfaction of the decree that shall be determined by the Executing Court and the pre-sale illegalities occurred in execution are amenable to the remedy under this Section and it is settled that post-sale illegalities or irregularities cause substantial injuries to the Judgment Debtor are covered under Order 21 Rule 90. Para 13
(D) Code of Civil Procedure, 1908(5 of 1908)-Or.21 R.66, 90-Auction sale-Principles reiterated.
29. (i) The Executing Court has to consciously apply its mind while fixing the market value of the property on the material available. Then it is mandatory on its part to advert to the decree amount as claimed in the execution petition and the value of the property brought for sale and to see whether the auction sale of the entire property through court is absolutely necessary to satisfy the decree. If, in the opinion of the Executing Court that the proceeds of auction of a portion of the property would be adequate to satisfy the decree, then the Court shall bring such portion alone for sale even if the property is one.
29. (ii) If the upset price, in view of the Executing Court, does not reflect approximate actual value of the property, there is a risk for the auction purchaser to be misled and bearing the same in mind the Court has to fix the value of the property.
29. (iii) The Court has to ensure that the Judgment Debtor is duly served with notice in each and every stage of the proceedings, so as to afford him opportunity to make a say before the Court as to the value of the property in order to avoid irremedial injury.
29. (iv) The Court shall not merely accept unhesitatingly the ipse dixit of one or both as regards the value of the property. The order of sale proclamation should show that the representations and objections of the decree holder and the judgment debtor as to the value were considered by the Court. Para 29
(E) Code of Civil Procedure, 1908(5 of 1908)-Or.21 R.66, 90-Auction sale-Rights and duties of judgment debtor-He has to take action before the date of sale proclamation-Failure precludes him from assailing the sale.
If the judgment debtors had notice from court and acquiesced by taking no action before the date of sale proclamation, they are precluded from assailing its legality or correctness on the subsequent point of time alleging that the execution sale is bristled with material irregularities.
Para 31
Civil Revision Petition filed under Section 115 of the Civil Procedure Code, against the Judgment and Decree inC.M.A.No.17 of 2005 in confirming the decretal order dated in E.A.No.475 of 2003 in E.P.No.199 of 1998 in O.S.No.9158 of 1995 on the file of III Additional Judge, City Civil Court, Chennai.
The first petitioner in E.A.No.475 of 2003 is one Komala Ammal, wife of Jeganathan. Her son is K.J. Prakashkumar. Both of them were defendants in the original Suit. Jaganathan is no more. Pending enquiry in the execution petition, she died. 2nd and 3rd petitioners are her daughters. Wherever the words "first petitioner" occur, it would refer to Komala Ammal.
2. The following are the averments found in E.A.No.475 of 2003 filed by these petitions:-
2. (i) The first respondent obtained an exparte decree in O.S.No.9158 of 1995 for recovery of money against the husband of the first petitioner and these petitioners. Since the decree holder agreed to deduct not only payments made but also agreed to give interest on the amounts paid, the defendants did not conduct the suit. However, far from expectation, the decree holder/first respondent filed E.P.No.199 of 1998 for sale of the property viz., Door No.90, Ashtabujam Road, Choolai, Chennai-112, which even according to the Government market value is worth more than Rs.50,00,000/- . Unfortunately, the second petitioner was admitted to Stanley Hospital, Chennai and the first petitioner has no male member to help her in the execution process and it seems that in E.A.No.2017 of 2002 without notice to them, the upset price was reduced and on that basis the property for sale proclaimed was not sold on the spot, but in the Court premises. It is understood that the sale was knocked down in favour of the nominee of decree holder for a very low price of Rs.11,00,000/- on 12.09.2002.
2.(ii) Originally the upset price shown by the petitioners was not fixed. The reduction of upset price by order dated 11.7.2002 without notice to these petitioners is illegal. Sale proceedings of an immovable property should be held only at the spot particularly in the Court premises which is not legally sustainable. There is also irregularity and illegality in the conduct of the sale and on that account also the sale is liable to be set aside. The entire proceedings of sale are totally against Order 21 Rule 66 of C.P.C. Hence, the sale dated 12.09.2002 in E.P.No.199 of 1998 has to be set aside.
3. In the Counter filed by the first respondent it is stated as follows:
3.(i) Execution petition was filed against the Judgment Debtor for attachment of immovable property for the E.P. Claim amount of Rs.4,98,145.50. On 14.12.1998 attachment was ordered and it was accordingly attached. On 1.11.1999 sale proclamation was made and the date of sale was fixed for 05.01.2000. Though this respondent requested the Court to fix the upset price at Rs.10,50,000/-, the Court fixed the same at Rs.16,25,000/-. On 5.1.2000 there was no bidders for the said upset price and thereafter this respondent filed E.A.No.271 of 2000 for fixing upset price at Rs.13,25,000/-, but the Court reduced the upset price to Rs.14,75,000/- and 30.01.2001 was fixed for sale. On that date also the property was not sold. Hence on E.A.No.504 of 2001, upset price was reduced to Rs.14,00,000/-.
3. (ii) Since slum dwellers area situates on the back side of the property, purchasers did not come forward to participate in the auction. In another Execution Application, because the property was not sold, the Court again reduced the upset price to Rs.12,00,000/-. Again there was no sale and as per the order in E.A.No.2017 of 2002, the upset price was reduced to Rs.11,00,000/- by the Court and the auction was held in the City Civil Court campus. The second respondent bid the auction for Rs.11,03,000/- on 12.09.2002, Sale Certificate was issued to him and he has filed petition for delivery in E.P.No.545 of 2003 which is pending. This respondent already filed petition to recei
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