THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.450 OF 2005 JUDGMENT: This Civil Miscellaneous Appeal, under Section 104 of the Code of Civil Procedure, 1908, (for short, “C.P.C.”) is directed against the order, dated 23.04.2005, in E.A.No.18 of 2005 in E.P.No.188 of 2003 in O.S.No.53 of 1998, on the file of the Senior Civil Judge, Gudur, Nellore District, whereunder and whereby, the petition filed under Order XXI Rule 90 C.P.C., to set aside the sale held on 20.12.2004 in the E.P. on the ground that there was material irregularity in conducting the sale, was dismissed. 2. The averments in the petition, in brief, may be stated as follows: Respondent No.1/decree holder obtained an ex parte decree in the suit against the petitioner/judgment debtor. No notice was served on the petitioner/judgment debtor from the Court under Order XXI Rule 66 C.P.C. to enable him to furnish his own valuation in respect of E.P. schedule property. Even as per the valuation certificate issued by the Sub-Registrar of Naidupet, the value of the E.P. schedule property is at Rs.48,98,080/-. The value of the property in open market and in Court auction are entirely different and the auction cannot be confirmed. There is a material irregularity in conducting the sale and the sale is to be set aside. The Court Amin did not consult the concerned Sub-Registrar and he put his own imaginary valuation. In Naidupet area, due to development in recent days, several agricultural lands were converted into costly house-site plots. In such condition, the Court Amin putting valuation of the E.P. schedule lands being agricultural lands is illegal. The sale publication in Janatha Daily of Vijayawada is unjust and it has no wide circulation. The petitioner also filed a petition to set aside the ex parte decree with a delay condone petition and as such the execution proceedings have to be halted till the disposal of these petitions. The highest bidder colluded with the decree holder, as he was none other than a clerk under the control of respondent No.1/decree holder. Hence, he prays to set aside the sale. 3. Respondent No.1/decree holder filed counter denying all the allegations made in the petition and stating that the suit was filed against the petitioner/judgment debtor on the strength of a promissory note and that he originally contested the suit by engaging an Advocate and filing written statement. Finally an ex parte decree was passed on 07.02.2002, and in execution, the landed property of the petitioner was brought for sale. The property was only cultivable land and it is surrounded by agricultural fields. The valuation certificate filed by the petitioner is for the house site and the respondent approached the same Sub-Registrar and after verifying the records, he gave market value of the land in dispute at Rs.2,53,000/- and those figures are revised figures in the year 2005. After filing of the Execution Petition, when notice was issued, the petitioner knowing fully well about it, evaded to receive the same and on that a paper publication was duly effected. The petitioner indebted to several others and he personally allowed the suit to go ex parte and allowed for the auction of the property. So, he is not entitled for any relief. Even otherwise, an insolvency petition was filed by the petitioner. The petitioner was fully aware of each and every step in the suit and as well as in the Execution Petition and never objected. The publication was given in Janata Daily newspaper, which has a wide circulation through out the state of Andhra Pradesh. So, there is no material irregularity in conducting the sale. The valuation certificate filed by the petitioner is not correct. Hence, he prays to dismiss the application. 4. Respondent No.2/auction purchaser filed counter denying all the allegations made in the petition and stating that the property of the petitioner was attached at the time of filing of the suit itself as per the provisions under Order XXXVIII Rule 5 C.P.C. The petitioner was also served with a notice personally in that petition. Though he filed his counter, he had not furnished the valuation of the property either in his counter or in his written statement nor denied the valuation made by respondent No.1/decree holder. Though the petitioner was given sufficient opportunities to substantiate his defence, he had not availed them deliberately and as such the petitioner is estopped to say that it is a n ex parte decree. The property auctioned was surrounded by agricultural lands on all four sides. The valuation certificate filed by the petitioner is not true and correct. This respondent obtained valuation certificate from the Sub-Registrar office, which goes to show that the market value is at Rs.2,53,000/-. The petitioner furnished false information and he obtained the certificate for higher value. The Court Amin after going to the village and after enquiry with the Panchayat Secretary of the village, fixed the market value for the auction property. It is not contemplated under law that the Amin has to consult the Sub- Registrar to know the value of the property. Paddy crop was raised in the auctioned lands, which itself speaks that it is neither a house site nor converted into house site at any time. The petitioner in order to take ‘chapa mandu’ went to Hyderabad and it can be only for few days. He need not settle there permanently. There is no material irregularity made out and unless it is very clear that a substantial injury is caused to the petitioner, the sale cannot be set aside and the petitioner ought to have taken the plea before the date of proclamation. There is no locus standi to the petitioner to file the petition as he was declared as insolvent in I.P.No.79 of 1998. Hence, he prays to dismiss the application in lumini. 5. Basing on the above pleadings, the executing Court framed the following points for consideration: 1. Whether the petitioner is entitled for any relief in this petition? 2. Whether there are any material irregularities in auction of the E.P. schedule property? 3. Whether the same was sold for an inadequate price? 6. During enquiry, no oral evidence was adduced on either side, but Ex.A1 was got marked, on behalf of the petitioner, and Exs.B1 to B3 were got marked, on behalf of the respondents. 7. The executing Court, upon considering the evidence on record, dismissed the application. Challenging the same, the present appeal is filed by the petitioner/judgment debtor. 8. Learned counsel for the appellant raised two grounds in this appeal, namely, (1) notice as required under Order XXI Rule 66 C.P.C. has not been issued and (2) there is a vast difference between the valuation of the property given by the respondent/decree holder and valuation furnished by the appellant/judgment debtor and hence, he prays to set aside the impugned order. 9. On the other hand, learned counsel for the respondents contended that the conduct of the appellant/judgment debtor is very clear that he was evading to receive summons and the explanation given by him that he was away from the village for the treatment of his mother at Hyderabad also is found to be incorrect and false; that sending of notice is mandatory, but mode of service has to be taken into consideration; that as the appellant was evading to receive the summons, notice has been taken by way of publication in a daily newspaper; that later, wide publicity was given to conduct auction by beat of tom tom and fixing the sale notice on the notice board of the Gram Panchayat Office and other Offices; that therefore, there is no material irregularity in conducting the sale and hence, he prays to dismiss the appeal. 10. The first aspect that has to be seen is whether there is proper service on the appellant/judgment debtor in the execution proceedings before proclamation of sale. 11. Order XXI Rule 66 C.P.C. deals with proclamation of sales by public auction. Order XXI Rule 66 Sub-Rule (2) C.P.C. requires the proclamation of sale to specify certain particulars. Every proclamation of sale must state the following details: “(i) time and place of sale; (ii) property or a part thereof to be sold; (iii) revenue, if any, assessed upon the property; (iv) encumbrance, if any, to which the property is liable; (v) amount to be recovered; (vi) such other particulars which the court considers material for a purchaser to know in order to judge the nature and value of the property. What sub-rule (2) contemplates is merely a procedure to settle and draw up the details of proclamation of sale. To ascertain correct details regarding properties to be sold, it contemplates notice to judgment – debtor and decree-holder so that the auction – purchaser would be able to know the nature of value of the property to be auctioned.” So, before proclamation of sale, notice to the judgment debtor is mandatory. Now it has to be seen whether such a notice was issued to the appellant/judgment debtor or not? 12. The present execution petition is filed on 16.12.2003. As seen from the note put up by the office, as the decree is below two years it was posted for test of the properties by 28.01.2004. As the Presiding Officer was on leave, the matter was posed to 19.02.2004. On 01.04.2004, as the documents filed by respondent No.1/decree holder were found to be correct, notice was ordered to the appellant/judgment debtor. On 21.06.2004, an endorsement was made by the Court “notice to JDr. returned and unserved as he was not resident of the village. JDr. called absent. For steps of JDr., post on 28/7.” So, from this endorsement it can be inferred that Process Server to whom the service of notice has been entrusted, must have returned the notice, as the appellant/judgment debtor was not residing in the village. Therefore, in all fairness, respondent No.1/decree holder ought to have furnished the correct address of the appellant/judgment debtor, so as to serve the notice in the execution proceedings and that, to the correct address of the appellant, notice could have been sent. If the notice is not sent, the valuable right of the appellant/judgment debtor would be seriously affected. So, without there being any material to show that the appellant/judgment debtor was evading to receive the notice, paper publication was ordered. 13. However, the learned counsel for the respondents placed strong reliance on a decision of the Honourable Supreme Court in Basanth Singh and another v. Roman Catholic Mission[1], wherein it is held “the trial Court having not passed any order about the satisfaction as envisaged under the Code, it was not open to the trial Court to order for substituted service. This submission need not detain us any longer. On the facts of the case the Court’s satisfaction is implicit in the order directing service by publication.” There cannot be any dispute that each case depends upon its facts and circumstances. The Supreme Court held that the order of the trial Court is implicit in the order itself so as to permit the plaintiff therein to serve the notice through paper publication. But, in the present case, the docket order clearly goes to show that the appellant/judgment debtor was not residing in the village. Therefore, it is not a case where the appellant/judgment debtor was evading to receive notice in the execution proceedings. Therefore, considering the facts of that case, the above ratio was laid down, which has no application to the present facts of the case. 14. Learned counsel for the respondents also relied upon a decision of the Honourable Supreme Court in Ravi Vimal Krishna and others v. State of Bihar and others[2], wherein it is held thus: “The third submission of the appellants, relates to the mode of publication of the assessment lists. That the mode of publication is a procedural provision is self- evident. But is it a mandatory provision? The High Court's finding as to the nature of the provision for publication under sub-section (1) of section 149 is somewhat contradictory. While holding that the manner of publication was mandatory and had to be complied with in terms thereof, in a subsequent portion of the judgment, it was held that it was a mere irregularity which could be waived. As we read sub- section (1) of section 149, the Chief Executive Officer is bound to give public notice of the assessment list. The word "shall" makes that clear. However the word "shall" does not qualify the next phrase which is separated from the words "public notice" by a comma. The phrase separated is "by beat of drum and by placards posted in conspicuous places throughout Patna..............". Generally speaking the object of giving a notice is to draw the attention of the persons sought to be affected to the matter notified. The purpose of specifying a particular mode of giving notice is to raise a legal presumption against such person, of knowledge of the subject of the notice. In other words, once the mode specified for giving notice is complied with, the onus is on the persons notified to prove that they were not aware of the subject-matter of the notice. There is otherwise no special sanctity given to the mode of service of notice. The appellants have contended that even though owners were served with individual notices under section 149(2), unless publication was made in the manner provided in section 149(1) the occupants who were liable to pay water tax and latrine tax would be seriously affected and would not have an opportunity of challenging the imposition of the tax on them. Incidentally, in the objections filed by the appellants their contention is that the holdings owned by them were not liable to payment of latrine tax or water tax because neither of the services were available. However, the matter has to be decided as a principle and not with reference to the appellants' case.” There is no dispute about the law laid down with reference to Section 149 of the Patna Municipal Corporation Act, 1951 (for short, “the Act”). The ratio laid down is that the paper publication was made in pursuance of Section 149 of the Act and therefore, it shall be a notice to the general public. There is no doubt that when a publication is made it can be a notice to the judgment debtor, but before ordering such a petition, it must be shown that he was evading to receive the summons. Such evidence is lacking. Learned counsel for the respondents contended that the conduct of the appellant/judgment debtor is highly doubtful because in a petition, filed to condone the delay in filing a petition to set aside the ex parte order, the Court has given a categorical finding that he was not residing at Hyderabad during that period and no explanation was given. No doubt, that finding has become final. But, at the same time, that cannot be taken as a ground so as to infer that the appellant/judgment debtor was evading to receive notice in execution proceedings. In view of the docket proceedings, it is clear that notice as contemplated under Order XXI Rule 66 C.P.C. could not be served by the Process Server for the reason that the appellant/judgment debtor was not residing in the village. Therefore, in such circumstances, the executing Court ought to have issued fresh notice to the appellant/judgment debtor. But, without following the procedure, it simply posted the matter for taking further steps. Service of notice on the judgment debtor under Rule 66 (2) of Order XXI C.P.C. is a fundamental step in the procedure in execution. The judgment debtor should have an opportunity to give his estimate of the property. The absence of notice causes irremediable injury to the judgment debtor. Therefore, the impugned order is liable to be set aside. 15. In view of the fact that on the first ground itself the impugned order is liable to be set aside, the second ground with regard to difference in valuation of the auction property need not be answered. 16. Accordingly, the Civil Miscellaneous Appeal is allowed setting aside the impugned order, dated 23.04.2005, in E.A.No.18 of 2005 in E.P.No.188 of 2003 in O.S.No.53 of 1998, on the file of the Senior Civil Judge, Gudur, Nellore District. The executing Court is directed to issue sale proclamation notice to the appellant/judgment debtor in terms of Order XXI Rule 66 C.P.C., and thereafter, pass appropriate orders in accordance with law. There shall be no order as to costs. _______________ K.C. BHANU, J March 09, 2011 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE NINETH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.450 OF 2005 Between: Kamireddy Ravi Babu .....APPELLANT AND Samudrala Satyanarayana and another ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.450 OF 2005 March 09, 2011 [1] AIR 2002 SC 3557 [2] (2003) 6 SCC 401