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Judgment
These Civil Revision Petitions ('CRPs) challenge orders of the learned Principal Subordinate Judge, Kumbakonam dated 03.08.2006 passed in E.A.Nos.153 and 132 of 2005 in E.P.No. 199 of 2005 dismissing applications filed to set aside the auction sale held on 15.12.2005 and ex-parte order, dated 29.09.2005 respectively.
Heard Mr.P.Thiagarajan for Mr.T.R.Rajaraman, learned counsel for the petitioner, Mr.M.Laxmi Shankar, learned counsel for the first respondent and Mr.K.Kathan Rajkumar for Mr.J.Barathan learned counsel for the second respondent.
The brief facts as are relevant to decide the CRPs are set out below:
(i) According to the first respondent/plaintiff in suit, the petitioner had borrowed a sum of Rs.2,75,000/- from him executing a promissory note on 10.05.1977 and undertaking to repay the amount with interest at 18% per annum. The amount due was not paid despite repeated requests.
(ii) O.S.No.53 of 2000 thus came to be filed by the first respondent in March, 2000 seeking a decree against the petitioner for a sum of Rs.4,17,668.50/- along with interest and costs of the suit.
(iii) Initially, the petitioner contested the suit and filed written statement dated 16.03.2001 raising various defences.
(iv) Thereafter, there were defaults in the appearances of the petitioner and the suit came to be decreed ex-parte against her on 02.04.2004.
(v) In the meantime the subject property came to be attached before judgment in I.A.No.110 of 2000 and the attachment was made absolute on 02.04.2004.
(vi) An Execution Petition, E.P. No.199 of 2005 was filed by the first respondent, the petitioner was set exparte therein and the petition allowed on 29.09.2005.
(vii) The auction sale of the property attached was concluded and the property sold on 15.12.2005 for a sum of Rs.6,05,000/-.
(viii) The petitioner thereafter filed applications in terms of Order 21 Rule 106 of the C.P.C (E.A.No.153 of 2005) and Order 21 Rule 90 of the C.P.C (E.A.No.132 of 2005) praying for a setting aside of ex-parte order dated 29.09.2005 passed in the E.P as well as seeking the deferment of sale proceedings on the ground that an appeal had been preferred by the petitioner before the District Court.
(ix) After hearing the parties, both applications came to be dismissed on 03.08.2006 by way of non-speaking orders.
The learned counsel for the petitioner relies on the provisions of Order 21 Rules 90 and 106 of the C.P.C. Order 21 Rule 90 provides for the setting aside of a sale on the ground of irregularity or fraud and Order 21 Rule 106 of the C.P.C provides for setting aside of an order passed ex-parte.
A perusal of the impugned orders indicates non-application of mind. The learned Judge does not refer to the provisions of the C.P.C relied upon by the petitioner and the orders are cryptic as extracted below:
Order dated 03.08.2006 in E.A.No.132 of 2005
'Petitioner filed this petition under Order 21 Rule 106 CPC praying this Court to set aside the exparte order passed in E.P.199/05.
Respondent filed counter stating that this petition is not maintainable for the reason that the properties are already attached and sale is completed.
Upon hearing both sides and perusing the records, it is found that the petitioner has sought for a blanket order to set aside the exparte order. This is the opinion of this Court will prejudice the decree holder and it is against the rules found. Hence, this petition is not maintainable at this stage.
In the result, this petition is dismissed without costs.'
Order dated 03.08.2006 in E.A.No.153 of 2005
'The petitioner filed this petition under Order 21 Rule 83 CPC praying this Court to adjourn the sale proceedings since the petitioner has preferred an appeal before the District Court.
Respondent filed counter stating that this petition is not maintainable and prayed this court to dismiss the petition with costs.
3.Upon hearing both sides and perusing the records, it is found that there is no stay granted by appellate Court in this regard and the auction sale is completed and therefore this court opined that this petition is not maintainable at this stage.
In the result, this petition is dismissed without costs.'
However, the sole ground raised by the petitioner in the present CRPs is lack of opportunity afforded. According to the learned counsel for the petitioner, notice ought to have been issued prior to ordering of the sale and this not having been done, the mandates, both under Order 21 Rules 90 and 106(2) of the C.P.C stand violated.
Reliance is placed on a judgment of the Supreme Court in the case of Notified Area Committee vs. Additional Director, Consolidation and others (2002 10 SCC 87) wherein the Supreme Court considers an order passed sans any reasoning whatsoever, and sets aside the same, remanding the matter back to the High Court for disposal afresh in accordance with law.
Learned counsel for the respondent for his part, relies on the provisions of sub-rule (3) of Rule 90 that lays an embargo on the entertaining of such application on any ground that may have been taken anterior to the drawing up of a proclamation of sale.
To this effect, reliance is placed upon a judgment of the Supreme Court in the case of R.P.A.Valliammal vs. R.Palanichami Nadar and others (AIR 1997 SC 1996) and a decision of a learned single Judge of this Court in the case of K.J.Prakash Kumar and two others vs. Rasheeda Yasin (2009-2-LW. 376).
According to the learned counsel for the respondent, the petitioner was well aware of the proceedings for sale of the property and as such there was no violation of the principles of natural justice.
I have heard learned counsel and perused the papers carefully.
The Rules relied upon by learned counsel are extracted hereunder:
'Order 21
. . . .
Application to set aside sale on ground of irregularity or fraud.-(1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a reteable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.
(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.
(3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.
...
Setting aside orders passed ex parte, etc.- (1) The applicant, against whom an order is made under sub-rule (2) of rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.
(2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party.
An application under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order."
The thrust of both the CRPs is to the effect that no opportunity has been granted to the petitioner to make her submissions either on the application to set aside the ex-parte order in E.P or on the application to set aside the auction sale.
However, the records speak differently.
The petitioner has filed an affidavit in E.A.No.153 of 2005 dated 20.12.2005 that reveals that she was well aware of the notice of proclamation of sale of the subject property even prior to the sale thereof. At paragraph No.2, she states as follows :
" . . . .
மனுதாரர் ஊரில் இல்லாதபொது இந்த 1ம் எதிர்மனுதாரர் தவறான தகவல்களை டிதரிவித்து கொர்ட் நடவழக்கையை ஏமாற்றி சமுகம் கொர்ட்ழலிருந்துஇ ப{ட்ழயிருந்த மனுதாரர் வீட்டு முகவரிக்கு வந்த நொட்ழுசை மனுதாரர் வாங்க மறுத்துவிட்டதாக பாய்யாக எபுதச்டிசால்லி நொட்ழுசை திரும்படிசய்துவிட்டார். அதனால் மனுதாரரை நிறைவெற்று மனுவில் எக்ஸ்பார்ட்ழ டிசய்து உத்தரவாகி டிசாத்தை ஏலம் பொட தெதி நிர்ணயம் டிசய்து இஸ்தியார் நகல் மனுதாரர் முகவரிக்கு அனுப்பப்படுகிறது. அந்த சமயத்தில் தான் மனுதாரர் ஊர் திரும்பினார். சமுகம் கொர்ட்ழல் இருந்து வந்த ஏல இஸ்தியார் நகல் பார்த்த பிறகு தான் மனுதாரர் பெரில் நிறைவெற்று மனு தாக்கல் டிசய்யப்பட்டுள்ள விபரம் மனுதாரருக்கு டிதரியவந்தது. உடன் மனுதாரர் அவரது வர்க்கறிஞரை சந்தித்து விபரம் டிசால்லி அதன் பெரில் மனுதாரர் இந்த நிறைவெற்று மனுவில் ஏற்பட்ட எக்ஸ்பார்ட்ழ உத்தரவை மாற்றவஜம் நிறைவெற்று மனுவின் ஏலம் மீதான நடவழக்கைகளை ஸ்டெ டிசய்யவஜம் மனுக்கள் தாக்கல் டிசய்து அவை முறையெ ஈ.ஏ.132/05 மற்றும் ஈ.ஏ.133/05 ஆக நம்பராகி அவைகள் நிலுவையில் உள்ளது.
She is thus precluded from taking the stand that she was unaware of the auction proceedings.
The provisions of Order 21 Rule 106(2) of the C.P.C., state that no order on an application filed to set aside the ex-parte order shall be passed unless notice of the application has been served on the other party.
In the present case, notice has been admittedly served by affixture since the petitioner could not be served by other means. The provisions of Order 5 Rule 17 of the C.P.C provide for service by affixture and the argument relating to the denial of natural justice fails in the light of the admission in affidavit dated 20.12.2005 to the effect that the petitioner came to know about the auction of the property even prior to the sale thereof.
The judgments relied upon by learned counsel for the petitioner have been rendered in distinguishable circumstances and do not apply to the facts and circumstances of the present case. In the case of R.P.A.Valliammal (supra), the Supreme Court was concerned with whether an auction sale was vitiated on account of the sale consideration being grossly inadequate. The Court noticed that no objection in respect of the alleged inadequacy had been raised by the petitioner prior to the settlement of the proclamation as set out in Order 21 Rule 90(3).
The contention of the petitioner that section 47 of the C.P.C preserved the right of the petitioner to object, notwithstanding the mandate of Order 21 Rule 93 was negatived by the Court. The Court however states that there is no fetter on the court to dispense with the embargo at its discretion.
In the case of K.J.Prakash Kumar (supra), this case deals with the provisions of Order 21 Rule 90(3) in similar circumstances as in the present case concluding as below:
'...
(i) Rule 90(3) of Order 21 C.P.C. puts a statutory bar on the judgment debtor to raise any ground for setting aside the sale, after the sale was conducted by the Court, which the judgment debtor could have taken on or before the date of which proclamation of sale was drawn up. To put it otherwise, he cannot file any application to set aside the sale under this rule on the ground, which he could have raised anterior to the drawing up of proclamation of sale.
(ii) The petitioners have already mentioned before the Court as regards the value of the property as about Rs.40 lakhs, in a proceeding in E.A.No.2944 of 2000, which is a petition filed by them under Order 21 Rule 64, 58 and 105 C.P.C to raise the attachment effected on 14.12.1998 over the property by Court. The said petition was hotly contested by the decree holder and ultimately the petition was dismissed on 14.08.2000. There was no appeal nor revision from the said order, wherein executing Court has observed that the judgment debtors have not produced any material to show that the property was worth about Rs.40 lakhs. The petition was filed into the Court on 11.06.2000 much later to the drawing up of sale proclamation. The Proclamation of Sale order was passed by the Court on 01.11.1999, fixing up the upset price. It took into consideration, the decree holder's value and Bailiff's value as Rs.10,50,000/- and Rs.15,25,000/- respectively and finally fixed the upset price at Rs.16,25,000/-.
(iii) On earlier occasions, before the sale proclamation order was passed, the Judgment debtors had appeared before the Court, prayed time for payment and they also paid certain sum towards the E.P. amount and at one point of time they did not appear, hence they were set exparte. Afterwards the Court went on with the proceedings to pass order of proclamation of sale on 01.11.1999.
As per Rule 90(3) of Order 21 of the Code, the Judgment debtors should have raised the ground prior to drawing up of proclamation of sale. But in this case the ground as to value of property was raised after the proclamation was drawn up. 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.....'
In the present case, the petitioner was initially present and participating in the proceedings. She was thereafter set ex parte on account of defaults in appearances. However, even thereafter, her affidavit dated 20.12.2005 reveals that she was well aware of the proceedings on-going for the sale of the property despite which she delayed raising objections to the same.
There is thus no reason why the objections taken by her in the present application could not be taken prior to the drawing up of the sale proclamation and the provisions of section 90(3) stand attracted in full. This ground is rejected.
Yet another ground taken by the petitioner is that the learned Principal Subordinate Judge has rendered contradictory findings in regard to the deposit of sale consideration and that in order sheet noting dated 03.08.2006 he states that upon completion of auction, a sum of Rs.4,45,000/- has been deposited when the sale consideration was in fact much more.
I do not see any contradiction as alleged by the petitioner. What appears to have transpired is that out of the total sale consideration of Rs.6,05,000/- the auction purchaser has, on 15.12.2005 deposited the initial amount of Rs.1,60,000/- and on 27.12.2005, the balance of Rs.4,45,000/-. In the aforesaid circumstances, the entire sum of Rs.6,05,000/- stands duly deposited into Court.
In view of the above discussion, the Civil Revision Petitions are dismissed and the sale by auction conducted on 15.12.2005, confirmed. No Costs. Consequently, connected Miscellaneous Petitions are closed.