IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.09.2020 CORAM THE HONOURABLE MR.JUSTICE T.RAJA C.M.S.A.No.45 of 2011 A.Selvi .. Appellant -vs-

1. A.Sellamuthu

2. S.Matheswaran .. Respondents Memorandum of Grounds of Civil Miscellaneous Second Appeal filed under Order XXI, Rule 90 read with Section 100 of the Code of Civil Procedure, against the fair and decretal order dated 19.04.2010 passed in C.M.A.No.35 of 2008 on the file of the learned Subordinate Judge, Tiruchengode, confirming the fair and decretal order dated 5.12.2007 passed in R.E.A.No.127 of 2007 in R.E.P.No.52 of 2006 in O.S.No.506 of 2004 on the file of the learned District Munsif, Tiruchengode.

For Appellant :: Mr.T.L.Thirumalaisamy For Respondents :: No appearance for R1 Mr.N.Manokaran for R2 JUDGMENT Heard learned counsel for the parties through video conferencing due to the Covid-19 pandemic.

2. This civil miscellaneous second appeal has been directed against the fair and decretal order dated 19.04.2010 passed in C.M.A.No.35 of 2008 by the learned Subordinate Judge, Tiruchengode, confirming the fair and decretal order dated 5.12.2007 passed in R.E.A.No.127 of 2007 in R.E.P.No.52 of 2006 in O.S.No.506 of 2004 by the learned District Munsif, Tiruchengode, raising the following substantial questions of law:-

(i) Whether the Courts below are correct in law in bringing the entire property for sale when 1/4^th of the value of the property as mentioned in sale proclamation will be sufficient to satisfy the decree?

(ii)Whether the sale proclamation is correct in law without mentioning the existence of 2 houses in the property?

(iii)Whether the Courts below are correct in law in dismissing the application filed under Order 21 Rule 90 of C.P.C., on the ground of non-compliance of conditional order without considering the grounds raised and deciding the application on merits?

(iv)Whether the Courts below are correct in law in dismissing the application on the ground that the appellant have not filed any objection at the time of auction?

3. Mr.T.L.Thirumalaisamy, learned counsel appearing for the appellant/judgment debtor, arguing on the above questions, pleaded that when the first respondent/plaintiff filed the suit in O.S.No.506 of 2004 for recovery of a sum of Rs.77,610/- including interest, on the basis of the promissory note dated 15.11.2000 executed in favour of the first respondent for Rs.60,000/-, although heavy objection was raised that there was no such borrowal, the suit was decreed on 27.4.2004 for payment of the suit amount with interest at the rate of 9% per annum from the date of filing till the date of the decree and thereafter, at the rate of 6% per annum till the date of realisation. Later on R.E.P.No.52 of 2006 was filed on 14.3.2006 by the first respondent/decree holder. After receiving summons, the appellant/judgment debtor appeared and contested the case, however, for not filing the counter affidavit, the executing Court proceeded with the matter by setting her ex parte. Thereafter, proclamation of sale was also ordered by the executing Court. When the first respondent/decree holder quoted a sum of Rs.75,000/- towards the value of the property, which is much below the market value, the executing Court directed the Court Amin to find out the actual value of the property, who also, after inspection of the property, fixed Rs.3,60,000/- as its market value. However, the executing Court, fixing Rs.4,00,000/- without the valuation done by an official valuer, brought the sale of the suit property by way of public auction on 26.4.2007. The second respondent/auction purchaser bid for a sum of Rs.4,00,400/-. But the Court, without discharging its duty to find out fairly the actual value of the property, allowed the second respondent to deposit one-fourth of the sale amount on the date of auction and the second respondent also deposited the said amount on the same day. The executing Court, giving sixty days time, posted the case for confirmation of sale on 27.6.200