Sridevi vs M. Natesan and Another

Ratnam, J.—This civil revision petition at the instance of the Court auction purchaser in execution of the decree in E.R.P. 107 of 1980 in

O.S. 219 of 1977, Sub Court Udumalpet, has been preferred against the order of the Sub Court, Udumalpet, in C.M.A. 35 of 1983, reversing the

order of the learned District Munsif, Udumalpet, in E.A. 477 of 1981 and setting aside the court sale in favour of the petitioner. There is no dispute

that the petitioner purchased the property belonging to the first respondent herein in the court auction sale held on 17-9-1980. In E.A. 477 of

1981, the first respondent herein prayed for setting aside the court sale held on 17-9-1980, at which the petitioner purchased the property, on the

ground that he was not served with sale notice and that there was no proper publication of the sale proclamation in accordance with the procedure

therefor. It was also the further case of the first respondent that he became aware of the court sale only on 15-11-1980 and that there had been an

omission to give a full and complete description of the property brought to sale, in that, the vacant site around the property as well as the electricity

connection provided therein had not been set out. Claiming that the property told in favour of the petitioner would easily fetch more than Rs.

30,000, and that the petitioner had purchased the property for a low price of Rs. 5000, the first respondent stated that he had sustained substantial

injury justifying the setting aside of the sale.

In the counter filed by the petitioner, she stated that the first respondent was fully aware of the proceedings culminating in the sale, as he had

been served with the sale notice as well as the sale proclamation, as required under the provisions of the law and that the property had been

properly described. The petitioner maintained that the non-mention of either the vacant site or the availability of electricity connection, would not in

any manner vitiate the sale, as all the particulars necessary to sufficiently and accurately identify the property had been given. The petitioner further

stated that the property had been sold in her favour subject to encumbrances and for a proper price as well and there was no material irregularity

either in the publication or in the conduct of the sale. The petitioner disputed the claim of the first respondent that he had sustained substantial injury

by the court sale.

The second respondent in his counter stated that there was no irregularity whatever either in the publication or in the conduct of the sale and that

the sale notices as well as proclamation had been issued in accordance with the provisions of the Code of Civil Procedure. According to him, the

details necessary to identify the property brought to sale had all been given and the property had also been described with reference to the

boundaries and consequently, the non-mention of minor details regarding the electricity connection or a share in the well would not vitiate the sale.

The second respondent also disputed the claim of the first respondent that the property though worth very much, had been sold for a very low

price and maintained that the court sale in favour of the petitioner was valid and for a proper price.

Before the District Munsif, Udumalpet, on behalf of the petitioner herein, R.Ws. 1 to 3 were examined, while on behalf of the first respondent,

Ex.A1 to A31 were marked in evidence and the first respondent gave evidence as P.W.1. The postal acknowledgment for service of notice in the

course of the execution proceedings was marked by court as C.1. On a consideration of the oral as well as the documentary evidence relating to

the service of notice in the course of the execution proceedings on the first respondent, the learned District Munsif found that the sale notice as well

as the sale proclamation were duly served on the first respondent and be was also aware of the execution sale to be held on 17-9-1980. Referring

to the contention that the Presiding Officer was on leave on 23-6-1980 and that the adjournment of the proceedings to 2-7-1980 by the Chief

Ministerial Officer on which date the first respondent was set ex parte owing to the absence of the petitioner on 2-7-1980 would not be valid, the

learned District Munsif, relying upon the decision in S.M. Raja Gounder v. Senapathi Mudaliar 65 L.W. 408= AIR 1952 Mad 798 found that the

reposting of the proceedings from 23-6-1980 to 2-7-1980 by the Chief Ministerial Officer was neither illegal nor irregular as it was the court

which passed the order on 2-7-1980 setting the first respondent ex parte owing to the failure of the first respondent to appear on 23-6-1980, or

even on 2-7-1980. Considering the objection of the first respondent herein that there was a misdescription of the property in that the electrification

of the house as well as the existence of a well therein had not been mentioned in the sale proclamation, the learned District Munsif found that the

property brought to sale had been clearly described by the four boundaries and there was thus no scope for mistake in the description of the

property. The objection that the property had been sold for a low price resulting in substantial injury to the first respondent was held to be not

made out, as the first respondent was unable to establish that the property was sold for a lower price. It was also further found that the court sale

in favour of the petitioner for Rs. 5,100 subject to encumbrance amounting to Rs. 11,600, was fair and reasonable. On the aforesaid findings, the

application filed by the first respondent herein to set aside the Court sale was dismissed. Aggrieved by this, the first respondent preferred an appeal

in C.M.A. 35 of 1983 before the Sub Court, Udumalpet. The lower appellate court, on a consideration of the evidence relating to the service of

notice on the first respondent, concurred with the conclusion of the learned District Munsif that the sale notice as well as the sale proclamation had

been served on the first respondent. However, the lower appellate Court took the view that the objection of the first respondent regarding the

invalidity of the adjournment of the proceedings by the Chief Ministerial Officer from 23-6-1980 to 2-7-1980 deserved to be upheld and the order

passed on the adjourned date, namely, 2-7-1980 setting the first respondent ex parte was not correct. Dealing with the objection that the property

sold had not been properly described, the lower appellate Court took the view that the omission to refer to the vacant space of 2-1/2 cents would

affect the court sale, and the sale of the property for Rs. 5,100 when it had been valued by the Amin at Rs. 30,000 would establish that the first

respondent had suffered substantial injury by the court sale. On those conclusions, the lower appellate Court, allowing the appeal preferred by the

first respondent herein, set aside the sale in favour of the petitioner. It is the correctness of this order that is challenged in this civil revision petition.

Though there was some controversy in the courts below whether the first respondent was served with the sale notice as well as the sale

proclamation in the course of the execution proceedings, before this Court, the finding in that regard recorded by the courts below was not

challenged by the first respondent. Therefore, for purposes of this proceeding, it has to be taken that the first respondent was duly served with sale

notice as well as sale proclamation as found by the courts below.

Learned counsel for the petitioner first contended that the view taken by the lower appellate Court that the adjournment of the proceedings from

23-6-1980 to 2-7-1980 by the Chief Ministerial Officer of the court owing to the absence of the Presiding Officer on that day would be invalid is

incorrect, as under the provisions of the Tamil Nadu Civil Courts Act, as well as the practice obtaining in all the subordinate courts generally over

several years past, that practice had been recognised and accepted and, therefore no exception could be taken to the procedure adopted in this

case. It was also further pointed out relying upon the orders passed on the execution petition that it was only the Court which had set the first

respondent ex parte, and, therefore, no exception could be taken to the validity of the order setting the first respondent ex parte in the manner

done. Strong reliance in this connection was also placed by the learned counsel for the petitioner upon the decision in S.M. Raja Goundar and

Others Vs. Choolai Sabapathi Mudaliar, On the other hand, learned counsel for the first respondent submitted that the postponement of the

proceedings from 23-6-1980 to 2-7-1980 was not in order as such postponement was done by the Chief Ministerial Officer and not the court and

therefore, the first respondent could not have been set ex parte on 2-7-1980 when he failed to appear. It was also pointed out that the decision

relied on by the learned counsel for the petitioner would not be applicable.

In order to appreciate the connection thus raised, it would be necessary to refer to the orders passed in the execution petition as could be

gathered from the application for execution. On 23-4-1980, the court ordered sale notice to the first respondent and directed the matter to be

called on 23-6-1980. On that day, as the Presiding officer was absent, the Chief Ministerial Officer reposted the matter to 2-7-1980. When the

matter was called by the Court on 2-7-1980, an order was passed to the effect that the judgment debtor had been served and was absent when

called and, therefore, was ex parte. The matter was adjourned to 11-7-1980 and as on that day there was no court sitting, the matter was posted

to 22-7-1980 and on that date, it was ordered that the property be proclaimed, and sold on 17-9-1980 with the upset price of Rs. 5,000 as given

by the second respondent. Pursuant to this order, when the property was sold on 17-9-1980, the petitioner purchased it subject to the

encumbrance amounting to Rs. 11,600 as he happened to be the highest among the bidders. From the entries made in the execution petition

referred to above, it is seen that the first respondent was set ex parte only by the court on 2-7-1980 and not by the Chief Ministerial Officer. Even

before that date, the first respondent had been served with sale notice as seen from Ex.C.1 on 9-5-1980. The sale proclamation had also been

served on the first respondent and signed by him on 13-8-1980. The service of sale notice as well as the sale proclamation on the first respondent

has not been disputed, as noticed earlier, before this Court. It, therefore, follows that the first respondent was fully aware that the property was to

be sold on 17-9-1980. The objection that the Chief Ministerial Officer reposted the execution proceedings from 23-6-1980 to 2-7-1980 and that

would be invalid is in my view, without any substance. In this case, the first respondent was set ex parte only on 2-7-1980 and that too by an

order of court and it cannot be attributed to any act on the part of the Chief Ministerial Officer. Under those circumstances, if at all, the first

respondent can take exception to the reposting of the case from 23-6-1980 to 2-7-1980. It is in this connection that the decision in S.M. Raja

Gounder v. Sanapathi Mudaliar 65 L.W. 408=A.I.R. 1952 Madras 798, has to be considered. In that decision owing to the absence of the

Presiding Officer, a suit which stood posted to 18-2-1948, was adjourned to 4-3-1948 by the Chief Ministerial Officer, of the Court. On the

adjourned date the defendant did not appear, which led to the passing of an ex parte decree against him and in the course of the proceedings to set

aside the ex parte decree, the defendant claimed that he was unaware of the date to which the case had been adjourned and he was under bona

fide had belief that the adjourned date was 5-3-1948, and, therefore, did not attend the court on 4-3-1948. The Courts below did not accept the

case of the defendant and rejected the application for setting aside the ex parte decree. Before this court, it was contended that in the absence of a

Judge or Presiding Officer on a particular day, the Chief Ministerial Officer had no jurisdiction to adjourn the cases posted for that day, and,

therefore, the adjournment of the suit to 4-3-1948 was outside the powers of the Chief Ministerial Officer. This argument was repelled by Govinda

Menon, J. with the following observations�

Under S.24 of the Madras Civil Courts Act ministerial officers of a court shall perform such duties as may from time to time be imposed upon them

by the presiding officer of the court. When a presiding officer is absent on account of illness or other reason from court, it is to be presumed that

for performing the routine duties which are not judicial on that day the presiding officer has the power to delegate it to the Chief Ministerial Officer.

No instructions have been issued by this Court to the subordinate court as to what should be done with regard to cases which stand posted to a

particular date when the presiding officer is unavoidably absent on that day. In such state of circumstances it seems to me that the proper

procedure which ought to be followed by the subordinate Courts is that such cases should be deemed to automatically stand adjourned to the next

working day and on such next working day when the presiding officer attends Court, he should either take up those cases on that day or adjourn

them to suitable dates But the practice now obtaining, as I understand, is that the Chief Ministerial Officer adjourns such cases to certain future

dates. It is this practice that has given room for the contention raised by the learned counsel for the petitioner. In my view, there is nothing illegal or

improper in the Chief Ministerial Officer adjourning a case which stands posted to a particular date on which the Judge does not attend court to a

later date, if he is authorised to do so by the presiding officer. Mere adjournment of a case which has not been part-heard cannot be said to be a

judicial order; and, therefore, even if the adjournment from the 18th February to the 4th March, was done by the Chief Ministerial Officer, still it

cannot be held that the action was ultra vires, and that the case cannot be deemed to have been adjourned to 4th March 1948.

The above observations would apply to this case as well. All that has been done by the Chief Ministerial Officer on 23-6-1980 when the Presiding

Officer was absent was to repost the matter to 2-7-1980. The first respondent had already been served with sale notice under Ex.C1 dated 9-5-

1980. Subsequently, the sale proclamation indicating that the property will be sold on 17-9-1980 had also been served on the first respondent on

13-8-1980. It is obvious, therefore, that the first respondent was fully aware of the proceedings taken with reference to the sale of his property as

well as the date when the sale would be held. The fact that the Chief Ministerial Officer merely reposted the case from 23-6-1980 to 2-7-1980

would not in any manner affect the order passed by the court on 2-7-1980 to the effect that the first respondent was set ex parte, especially, when

the first respondent was fully aware of the proceedings that were going on from the notices served on him. What is significant is that even though

the petitioner was served with notice for the hearing on 23-6-1980, he did not appear on that day. Normally, the first respondent should have been

present and if he had been, then, certainly he would have known about the reposting of the case to 2-7-1980, It would be useful in this connection

to refer to the observations of Curgenven, J., in Commissioner of Income tax v. Perianna Pillai 31 L.W. 79= 58 M.L.J. 10 at 15 (F.B.).

It is not practice, much less a rule of procedure even in the Court of Justice that an adjournment date is so intimated to an absent party. No doubt

if a party chooses to apply, in person or by representative, at the court or office, he can learn what order have been passed. But he cannot insist

upon a telegram or a letter by post, any more than he can insist upon a letter by a special messenger.

Again, in S.M. Raja Gounder v. Sanapathi Mudaliar AIR 1952 Mad. 798, the court observed in follows�

If, therefore, the petitioner by his own negligence in being absent on 18-2-1948 did not know the adjourned date, he has to thank himself, He

cannot turn round and say that the chief ministerial officer had no jurisdiction to adjourn the case to a free day on a subsequent occasion. He

should have presented himself on 18-2-1948, and objected to it or he could have stated that the date would not be suitable to him or matters like

that. But in the absence of such protest it cannot be held that the action of the Ministerial Officer in fixing a dale for the hearing is illegal or irregular.

The petitioner has to prove that he was not aware of the adjourned date and he has signally failed to do so.

In this case also, as noticed earlier, the petitioner was fully aware of the posting of the petition to 23-6-1980 and the fixing of the date of sale as

17-9-1980 and he refrained from attending the court on those days and the first respondent has to thank himself. It is also significant that the first

respondent had not chosen to take steps to set aside the ex parte order passed against him on 2-7-1980, though he knew about the proceedings in

execution and the sale fixed for 17-9-1980. Under the aforesaid circumstances, the first contention of the learned counsel for the petitioner is well

founded and there is absolutely no substance in the objection raised by the first respondent that the reposting of the case from 23-6-1980 to 2-7-

1980 by the Chief Ministerial Officer was invalid and the invalidity would also attach to the order passed by the court on 2-7-1980 when the first

respondent was set ex parte.

Learned counsel for the petitioner next submitted that the lower appellate Court was in error when it proceeded to set aside the sale on the

ground of substantial injury resulting from an omission to refer to the electrification of the house as well as the availability of an extent of 2-1/2 cents

of vacant space. It was also further pointed out that this conclusion is vitiated by an omission on the part of the lower appellate Court to take into

account that the sale was of a property described with reference to its four boundaries and subject to encumbrance. Per contra, learned counsel

for the first respondent contended that the omission to mention the availability of a vacant space of 2-1/2 cents materially affected the price fetched

at the sale and justified the setting aside of the sale.

A reference to the execution petition as well as the sale proclamation clearly shows that the property sold had been described with reference to

its four boundaries. Even though it may be that there was no specific reference either to the electrification of the house or the existence of a well or

even the availability of 2-1/2 cents of vacant space, it is clearly seen from the description given that the entirety of the property bounded within the

four boundaries mentioned therein with whatever it contained was the property brought to sale and sold. There is, in my view, no need when the

entire property is described by its four boundaries, to make specific mention about either the electrification or the existence of a well or the

availability of a vacant space within the four boundaries. All these would be taken in by the boundary description given. It is not the case of the first

respondent that the boundary description would not take in the vacant space available or would not cover the well or even the electrification. What

was sought to be sold through Court was a property described by its four boundaries as it stood and in that view, it was wholly unnecessary to

make any specific reference in the sale proclamation about the well or the electrification or even the vacant space. The lower appellate Court was,

therefore, in error in holding that the omission to specifically refer to those matters would vitiate the sale. Likewise, the view taken by the lower

appellate court that the first respondent had suffered substantial injury by the sale of the property for Rs. 5,100 is erroneous. Obviously, the lower

appellate court has omitted to take into consideration the fact that the property was subject to encumbrance to the tune of Rs. 11,600 and the sale

was subject to the encumbrance. The lower appellate court also failed to take note of the fact that the first respondent had not in any manner

established that the property was worth much more. All that was said by P.W.1 in the course of his evidence was that he purchased 5-1/2 cents at

the rate of Rs. 350 per cent and that he did not know the cost of construction. So, when the first respondent himself was unable to give any useful

evidence regarding the actual value of the property, he cannot be heard to complain that the property sold for had been sold for a low price. The

lower appellate court, without adverting to the evidence of P.W.1, and overlooking the fact that the sale was subject to encumbrance, concluded

that the court sale for Rs. 5100 was vitiated by the omission to refer to the vacant site and that resulted in the sale of the property by which the first

respondent suffered substantial injury. The conclusion so arrived at by the lower appellate court is erroneous and cannot at all be supported. No

other point was urged. Consequently, the civil revision petition is allowed, the judgment and decree of the lower appellate court in C.M.A. 35 of

1983 are set aside and the order of the trial court in E.A. 477 of 1981 in E.P. 459 of 1981 will stand restored with costs throughout.