Manjamma v. Suryanarayana Rao

The Judgment of the Court was delivered by

Kulkarni, J.:— This is an appeal by the Judgment-Debtor No. 2 against the order dated 25-10-78 passed by III Additional Civil Judge, Mysore in Ex. case No. 88/77 rejecting I.A 12 filed by Judgment-Debtor (‘JDr’ for short) No. 2, under Order 21, Rule 90 C.P.C

2. The sale was held on 30-6-78. One Shikshadevi, Respondent No. 2 herein, bid the property for Rs. 50,000/- in the sale held in the Court and as she was the highest bidder, the bid was accepted.

3. JDr No. 2 filed the application under Order 21, Rule 90 C.P.C challenging the said sale alleging that the sale proclamation was bad in law as it was not published in Kannada. According to her, as the sale proclamation was issued in English, nobody came to know about the contents of the sale proclamation or about the publication of the sale proclamation. She has then urged that she was the owner of the property and her name had not been shown as owner in the sale proclamation. On the other hand, the sale proclamation showed the name of JDr No. 1 as owner. According to her, this dissuaded the people from coming to the Court to bid for the property. She then urged that the sale proclamation was not published with notice to the Corporation as required by Order 21, Rule 54(2). She then urged that the sale was not held on the spot as required under Rule 138 of the Civil Rules of Practice. The sale was held only in Court and, therefore, this also rendered the sale bad at law. She, further contended that on account of this irregularity almost bordering on illegality, substantial injury was earned and hence she prayed for setting aside the sale.

4. The said Petition was resisted by the Decree-Holder and the auction purchaser.

5. The Trial Court dismissed the application. Hence, the appeal.

6. The sale proclamation is in a printed form. It is printed in English. Even the blanks have been filled up in English. The object of sale proclamation is to inform the people that sale of a particular property is to be held on a particular day in a particular place. The sale proclamation is made to give all the information relating to the property to be sold. If the sale proclamation is to be published in English, it is as good as depriving a large majority of the people from coming to know about the property to be sold. Order 21, Rule 66(1) reads as:

“(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.”

Admittedly, the language of the Court which issued the sale proclamation is Kannada. Therefore, the publication of the proclamation in English appears to violate the wholesome principle laid down by Order 21, Rule 66(1) C.P.C This English printed form appears to be in existence since the beginning of this century. It is quite high time that steps are taken to print the sale proclamation in Kannada. Therefore, the non-publication of the proclamation in Kannada is also one of the circumstances which must have been responsible for the people not coming in numbers to bid at the sale, said to have been held in the Court.

7. The sale proclamation makes a very interesting reading. It reads as:

“In the absence of any order of postponment, the sale will be held by at the monthly sale commencing at 11 clock on the 30th June 1978 in Court.”

Whether ‘11 clock’ means 11 a.m or 11 p.m is not made clear by it. Court means which Court is not also made clear. There are so many Courts in the City of Mysore. Therefore, the non-mention of the Court in which the sale is to be held is also a vital reason which also must have been responsible for people not coming in numbers to bid at the sale purported to have been held in the Court.

8. Sri Datar Learned Counsel drew my attention to Rule 138 of the Civil Rules of Practice, which reads as:

“Sale of immoveable property shall ordinarily take place at the spot, subject to the condition that the final bid shall be offered before the Presiding Officer at the Court-house.”

There is no mention in the sale proclamation as to why the sale has not been held on the spot at all. Learned Counsel Varadachar for the auction purchaser drew my attention to the compromise entered into between the Decree-Holder and the JDr. No. 1. Clause 5 of the compromise memo reads as:

“It the Judgment debtors fail to pay, then the attached property of the II Judgment debtor will be sold and the decree-holder will be entitled to purchase the same for the total decree amount. The same shall be held near Court.”

Learned Counsel Varadachar submitted that by this clause it should be taken that the JDrs, waived the right to the property being sold on the spot. It has been held in Venkateswara Ettu Naicker v. Ayyammal,

“No such latitude is given under Rule 66. Even the consent by judgment-debtor could not waive a proclamation provided for under R. 66 which is obligatory.”

The sale on the spot is an essential part of the sale itself. Even if the JDrs. agree to waive it, the Court is not bound by it and me Court is bound to follow the mandatory provisions of Rule 138 of the Civil Rules of Practice. Even otherwise, though the heading of the compromise petition reads as ‘the decree-holder and the JDrs. agree to have the sale set aside’, it is signed only by the advocate for JDr.-1. It is not signed by the advocate for JDr.-2 or JDr.-2 herself. Therefore, the said compromise petition cannot be said to be binding on JDr. No. 2. Therefore, even assuming that JDr. No. 1 had waived the right to the sale being held on the spot, it would not be binding on JDr.-2 to whom the property belongs and who is the appellant in the case. The object of holding the sale on the spot is to bring it to the notice of the people in the locality that a particular property belonging to a particular JDr. is to be sold at a particular spot. The object of the sale being held on the spot is to attract as many bidders as possible and to see that the property fetches the highest price. Therefore, the requirement underlined in Rule 138 of the Civil Rules of Practice is really laudable. Therefore, in my opinion, Rule 138 is a mandatory provision. Therefore, the non-holding of the sale on the spot in this case is mainly responsible for sufficient number of people not coming to the Court to participate in the sale bid. The sale proclamation, as can be seen from the report appended to it, appears to have been published some 2 months before. The people are not expected to note down the date and time and the place where the sale would be held on the date when the sale proclamation is said to have been published. The people must come to know about the intended sale just some few days before the actual conduct of the sale itself before the Court. The object of holding the sale on the spot is to apprise the people that the final bid of the sale would be held in the Court on a particular date. If that is not done, grave injustice would be caused to the JDr. The property must fetch proper price. The proclamation published in this case is not proper. The property may not fetch proper price at all because many people may not come to know about the holding of the sale and thus many people will not have an opportunity to participate in the sale.

9. The executing Court has come to the conclusion that JDr. No. 2 is the owner of the property. That conclusion is well substantiated by sale deed and other material on record and it is not disputed before me. Unfortunately, the sale proclamation does not show that property belongs to JDr. No. 2. It shows that it belongs to Rangaswamy and another. Who is that another parson cannot be made out from the sale proclamation. The name of Rangaswamy is redundant because he is not the owner of the property. The owner of the property is JDr. No. 2 and in fact her name must have been published. The intending purchasers might have naturally made enquiries in the locality and would have been aghast to know that the property belongs to JDr. No. 2 whereas the sale proclamation shows some other name. Nobody would think of investing his hard earned money in a property unless he feels he is quite safe in the bargain. Nobody would sink his hard earned money in litigation. Everybody knows that what passes on to the auction purchaser in a Court auction sale is the right, title and interest of the JDr. When JDr. No. 1 Rangaswamy was found by the people in the locality not to have any right, title or interest, they would not hazard to go to the spot and purchase the property at all. This is also a circumstance which has vitally affected the sale and it is, in my opinion, a material irregularity bordering on illegality.

10. Now coming to the publication of the sale proclamation, it appears that it is not published on the notice board of the Corporation or the Municipality. Order 21, Rule 67 C.P.C reads that every proclamation shall be made and published, as nearly as may be, in the manner prescribed by Rule 54, sub-rule (2). There is a Karnataka Amendment to Order 21, Rule 54(2). The Karnataka Amendment reads as:

“and where the property is situated within the limits of a Municipality or other local authority also in the principal office of the said Municipality or the local authority.”

It appears that this Karnataka Amendment was not brought to the notice of the lower Court. The lower Court was mainly carried away by the use of the words, ‘the office of the Grahma Panchayat, if any, having jurisdiction over the place’. The lower Court appears to have thought that there was no Grahma Panchayat at all in Mysore and therefore it was not necessary to publish it. If Karnataka Amendment to Rule 54(2), as extracted above, was brought to the notice of the Court, I am sure, the Trial Court would not have committed such a serious material error in expressing its opinion in the above manner. The non-publication of the sale proclamation on the notice board of the Corporation amounts to violation of the mandatory provision of law under Order 21, Rule 54(2) read with Order 21, Rule 67.

11. The evidence of the process server Venkataramana Das shows that he got the proclamation published through Shambha, the Kuluvadi, by beat of tom tom in 6th cross at V.V Mohalla. That Shamba had not been examined. It is not the case of the Decree-Holder or the auction purchaser that Shambha is not available. According to the process-server that Shambha was working as a ‘Chakra’ in the Municipality. If it is so, it would not have been difficult for the auction purchaser or the Decree-Holder to examine that Shamba. The non-examination of Shambha casts a doubt on the evidence of Venkataramana Das regarding the publication of the sale proclamation. He himself has stated that he does not know where Shambha is residing. If he himself does not know where Shambha is residing then his evidence that he got the sale proclamation published by such Shambha can hardly be accepted. He has admitted that Ex. D1 does not disclose at what time the same was published and mahazar Ex. D1(a) was drawn up. Therefore, his evidence that it was published near about the house and the mahazar was drawn up near the house proposed to be sold, becomes highly suspicious. He was entrusted with the original proclamation and a copy thereof. He returned the original proclamation Ex. D1 to the Court and he gave a copy of the same to the office. He claims to have affixed the copy of Ex. D1 by pasting it on all its four sides with cause title facing thereunder. If he had returned the original to the Court and gave a copy of it to the office, wherefrom he got another copy to affix on the house is a mystery because, according to him, he was given only two copies. Realising that mistake he stated, ‘now I say that I had pasted the copy of the same affixing it only on two sides at the top’. If his evidence has to be accepted, it only follows that he tore that proclamation into separate batches and affixed them on the different parts of the house. Thus, the evidence of the process server is highly suspicious and it does not, in my opinion, show that the proclamation was published, much less, satisfactorily and according to rules and regulations. Further, the process-server does not say that he knows English. The sale proclamation was in English. So he could not have known the contents of the sale proclamation he published. He does not say that he jotted down the contents of proclamation in Kannada. Therefore, his evidence appears to be rather mechanical and it does not show satisfactorily that he published the sale proclamation properly.

12. The process server has, however, stated that he published the sale stating that the property belonged to H.S Rangaswamy. Therefore, the non-mention of the name of JDr. No. 2 as the owner of the property in the sale proclamation would have repelled the intending buyers from participating in the bid. Perhaps the people even might have been aghast that the property belonging to JDr. No. 2 was purported to be sold as property belonging to H.S Rangaswamy. This circumstance must have dissuaded them from participating in the sale. Therefore, the above discussion would go to show that there have been serious and material irregularities almost bordering on illegality in the publication and conduct of the sale.

13. Sri Varadachar drew my attention stating that the material on record did not show that any substantial injury was caused by such irregularity. One of the methods to find out whether substantial injury was caused or not is to see whether the knocking down of the property for a lesser price was due to the irregularities that have occurred in the conduct of the proclamation of the sale and in the actual conduct of the sale. When the sale was held in the year 1977, it was bid for Rs. 65,000/-. The property is situated in a most conspicuous part of Mysore City where the value of the properties has been enormously increasing every day. The property, instead of fetching more price, has fetched less price in 1978. The evidence of JDr. 1, JDr. 2 and the estate agent would go to show that the property is worth 1 lakh and odd on the date of the sale. It may be just oral evidence. But it cannot be forgotten that the property in question measures 180′×60′ with a building in front, an out-house and some cocoanut trees. If such a property fetches only Rs. 50,000/- it only follows that substantial injury is caused to the owner JDr. No. 2. The said substantial injury, as already stated above by me, is due to the material irregularities pointed out by me above. Therefore, the argument of Varadachar in this connection is rejected.

14. Therefore, the order passed by the Court below dismissing the application under Order 21, Rule 90 C.P.C is set aside. The appeal is allowed and the sale is set aside.