IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE THIRTY FIRST DAY OF MAY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.2282 of 2005 Between: Konduru Satyavathi. ... PETITIONER AND Rajendra Jeweeler rep. By its Proprietor and another. ...RESPONDENTS Counsel for the Petitioner : MR. M. LAKSHMANA SHARMA Counsel for the Respondent: MR. P. RAM SHAH The Court made the following: ORDER: Petitioner is judgment debtor in O.S.No.706 of 1987 on the file of the I Additional District Judge, Rajahmundry. The first respondent/decree holder had obtained a money decree against the petitioner for a sum of Rs.4,860.50 ps. together with subsequent interest at 6% per annum on Rs.3,700/- from the date of suit i.e. 17.08.1987 till the date of realization. 2. The first respondent/decree holder filed E.P.No.72 of 1995 under which the EP schedule property was brought to sale and was purchased by the second respondent/auction purchaser. The said auction was held on 28.10.1996 and the EP schedule property was sold in favour of second respondent – highest bidder for an amount of Rs.84,000/-. The petitioner herein filed E.A.No.1132 of 1996 under Order 21 Rule 90 of the Civil Procedure Code, 1908 to set aside the sale on the ground of material irregularities and on contest the said petition was dismissed by the executing Court by order dated 20.06.1997. Against the said order, the petitioner filed CMA.No.37 of 1997 before the II Additional District Judge, East Godavari at Rajahmundry, which was also dismissed on 28.06.1999. Questioning the said order, the petitioner had filed CRP.No.3442 of 1999 before this Court and by order dated 28.09.1999 while ordering notice before admission, this Court had granted interim stay subject to the condition of the petitioner depositing the decretal amount together with costs within six weeks. Later, the revision petition was admitted on 08.06.2001 and by the time it came up for final disposal on 05.08.2003 the judgment of the Supreme Court in SHIV SHAKTI COOPERATIVE HOUSING SOCIETY v. M/S. SWARAJ DEVELOPERS [2003 (3) SUPREME 729] was reported holding that revision petition under Section 115 CPC, as amended, covers the present case and accordingly, this Court held that CRP is not maintainable but gave opportunity to the petitioner to question the impugned order by filing a fresh revision under Article 227 of the Constitution of India. With the aforesaid observation the CRP was dismissed on 05.08.2003. Thereafter, the petitioner has filed the present revision petition under Article 227 of the Constitution of India and this Court by order dated 29.04.2005 admitted the CRP and granted interim stay as prayed for, which is continuing to operate till now. 3. Heard Mr. M. Lakshmana Sharma, learned counsel appearing for the petitioner and Mr. P. Ram Shah, learned counsel appearing for the auction purchaser – second respondent. 4. Learned counsel for the petitioner contended that both the Courts below erred in not setting aside the sale in spite of brining to their notice that the sale of EP schedule property is itself excessive, as on the date of filing of the application by the petitioner the outstanding decretal amount was hardly Rs.8,410/-. Further, as per the interim order in earlier CRP.No.3442 of 1999, referred to above, the petitioner has already paid a sum of Rs.9,500/- on 28.10.1999 within the time prescribed under the said interim order. The said amount, therefore, is lying to the credit of EP.No.72 of 1995, which includes the decretal amount with costs and subsequent interest up to 26.10.1999. A copy of the challan, which is filed in original with the executing court is produced by the learned counsel together with a photocopy of the decree and a letter of the lower Court’s counsel dated 05.11.1999 informing the compliance of the conditions of the interim order in earlier CRP.No.3442 of 1999, referred to above. Learned counsel, therefore, states that since the entire amount is lying as deposit, there is no reason for the Court below to reject the petitioner’s application, which has enabled the respondent/auction purchaser to knock away the valuable property of the petitioner for a paltry sum of Rs.84,000/-. It is also stated that the property is a double storied house and as per the Sub-Registrar’s valuation filed and marked before the executing Court as Ex.A3, the value of the land alone is Rs.60,000/- and the value of the building is Rs.1,62,000/-. It is, therefore, contended that for a decretal amount of about Rs.8,4000/- selling the entire property i.e. double storied house of the petitioner was, on the face of it, excessive and it also shows that the property was sold in favour of the auction purchaser for an unreasonably low value than even the official market value evidenced by Ex.A3. 5. Learned counsel also submits that the actual market value of the property is always much more than what is mentioned in the Basic Value Register maintained by the Sub-Registrar. Therefore, there is no doubt that the property is sold for an unreasonably low price. He also questions the proclamation of sale on the ground that it is full of mistakes and is misleading, as the house number given is wrong, the house being a double storied one is not mentioned and the value mentioned in the publication is shown as only Rs.30,000/-. 6. Learned counsel for the respondent, on the contrary, contends that the petitioner has not raised any objection when the said proclamation was settled and he has not even participated in the proceedings before the Court. He submits that misdescription of the property is not an irregularity, as the boundaries were correctly shown in the proclamation of sale. So far as first floor existing on the house is concerned, he contends that that might have come up later and in any case, is not a ground, as boundaries were mentioned in the proclamation. He also points out that the petitioner never raised objection with regard to the value fixed by the Court and that the upset price was, in fact, reduced by the Court. But as the petitioner did not participate in the EP proceedings, he has no right to question the same now. It is also contended that there is no substantial injury and in any case, there is no evidence. Learned counsel also submits that the executing Court had already issued sale certificate in favour of second respondent dated 20.06.1997 and as such, at this distance of time, the second respondent having parted with the entire consideration long back, it will be highly inequitable and unjust to set aside the sale. He relies upon the provisions of the Order 21 Rule 89(3) CPC and submits that the petitioner is not entitled to raise the objections, which he could have raised at the earlier stage. Rule 279 of the Civil Rules of Practice is also relied upon to contend that on rejection of application to set aside the sale, the executing Court is empowered to confirm the sale and consequently, once the sale certificate is issued in favour of this second respondent, the orders of the Courts below refusing to set aside the sale do not warrant any interference. 7. The point for consideration, therefore, is whether the Courts below committed error in refusing to set aside the sale impugned by the petitioner on the grounds, as mentioned above. 8. Now it is well settled that power of executing Court to sell the property of the judgment debtor is limited only to so much of the property as is sufficient to satisfy the decree. The decision of the Supreme Court in AMBATI NARASAYYA v. M. SUBBA RAO [AIR 1990 SC 119] was cited before the Court below but the same was distinguished by the lower appellate Court on the ground that the property of the judgment debtor in the said decision was divisible whereas the house property in the present case is not divisible. The legal position enunciated by the Honourable Supreme Court is reiterated in another decision in AIR 1997 SC 2106 and relevant paragraph thereof is as follows: “In Ambati Narasayya vs. M. Subba Rao, [1989 Supp. (2) SCC 693] this Court held that it is the duty cast upon the court under Order 21 Rule 64 to sell only such properly or a portion thereof as may be necessary to satisfy the decree, it is a mandate of the legislature which cannot be ignored.” 9. In the present case, Ex.A3 certificate issued by the Sub-Registrar clearly shows that the value of the land is Rs.60,000/- whereas the value of the house standing thereon is Rs.1,62,000/-. The decretal amount outstanding and payable by the petitioner on the date of filing of the application to set aside the sale was only Rs.8,410/- and it is on record that the petitioner has deposited a sum of Rs.9,500/- on 30.10.1999 as per the interim order of this Court in the earlier CRP, referred to above. The entire decretal amount is, therefore, lying to the credit of EP and neither of the counsel could confirm as to whether the decree holder as withdrawn the said amount. Thus, even if ignoring the deposit of the said amount, if the contentions of the petitioner are examined, it is evident that for a decretal amount of Rs.8,410/- the EP schedule property worth more than Rs.2 lakhs was brought to sale. In my view, therefore, the sale is clearly an excess sale and no effort is made by the executing Court to ascertain as to whether part of the said property would also have been sufficient to satisfy the decree. The finding of the lower appellate Court that the property is not divisible is not based on any material. When, admittedly, the property is a double storied house, neither of the Courts below have, therefore, applied its mind to this aspect, which, on the face of it, shows that the sale in question is clearly excessive and is beyond the jurisdiction of the executing Court under Order 21 Rule 64 CPC. 10. To the extent of the second contention of the learned counsel for the petitioner that there are serious and material irregularities, two circumstances are relied upon viz. (i) that the value of the property as per the Basic Value Register – Ex.A3 is Rs.60,000/- for the land and Rs.1,62,000/- for the building totaling to Rs.2,22,000/-. The Amin of the Court had valued the property at Rs.1,30,000/-. The decree holder had given the value of the property as Rs.30,000/- and (ii) The sale proclamation, a copy of which is produced during the hearing and which is not in controversy, shows that the house number of the property is shown as 21-2-28 whereas the correct house number is 21-2-8. The valuation of Amin though was Rs.1,30,000/-, the sale proclamation shows the same as Rs.30,000/- and this was sought to be explained by showing that there was a small ‘t’ printed before Rs.30,000/-, which is sought to be explained as misprint for Rs.1,30,000/-. The argument of misprint carries no conviction. Further, the extent of the property is not mentioned in the proclamation and only the boundaries are correctly mentioned. Both the Courts below have rejected the valuation aspect on the ground that nobody is examined by the petitioner in support of Ex.A3 valuation certificate and the other objections are rejected on the ground that the same do not amount to material irregularity. 11. I am unable to appreciate the reasons of the Courts below. Ex.A3, certificate was issued by Sub-Registrar, which is a certificate issued in the course of his official duties based upon the official records of valuation of property maintained by the Sub-Registrar for the purpose of ensuring that the properties are not undervalued at the time of registration. The said basic value register is, therefore, prepared under the Rules framed under the Andhra Pradesh Stamp Act dealing with prevention of under valuation of properties. Though the said value mentioned in the certificate is not by itself conclusive, unless rebutted, a presumption is required to be drawn that the value mentioned therein is the official market value adopted by the Stamps and Registration Department. The rejection of the said document merely on the ground that the Sub-Registrar is not examined is, in any case, perverse and untenable. Secondly, with respect to other aspects pointed out, as mentioned above, also have to be taken into consideration inasmuch as for a third party bidder, he does not know that the Amin’s valuation of the property in Rs.1,30,000/- nor he is aware of the extent of the property and is neither aware that the house comprises of ground + first floor. The sale proclamation is intended to notify the prospective bidders of the description of the property as accurately as possible so as to enable the bidders to come prepared to bid at the auction. The number of misdescriptions pointed out in the sale proclamation cannot but be said to be material, which vitiates the sale. 12. Learned counsel for the respondent has vehemently contended that in view of issuance of the sale certificate and the deposit of the entire amount by the auction purchaser, setting aside the sale at this distance of time would be highly inequitable, is also liable to be rejected in view of the fact that the executing Court had rejected petitioner’s EA to set aside the sale on 28.06.1997 and on the same day the sale certificate is issued to the second respondent. Petitioner had, thereafter, preferred an appeal unsuccessfully against the said order of the executing Court and had further approached this Court earlier by CRP.No.3443 of 1999 and now under the present revision petition. The issuance of sale certificate, therefore, was always subject to further orders of the superior Court where the petitioner had questioned the order of the executing Court in refusing to set aside the sale. 13. Thus, merely because the sale certificate is issued to the second respondent, is no ground to refuse to set aside the sale, if the petitioner successfully demonstrated serious and material irregularities in conducting of sale. The Honourable Supreme Court in Nani Gopal PaulVs.Respondent: T. Prasad Singh and others [1] has held that the power to set aside the sale can be exercised after the sale certificate is issued and the relevant paragraphs 3 and 4 thereof are extracted as hereunder: 3. While disposing of the appeal, the Division Bench has pointed out that the sale was vitiated due to the manner in which the single Judge dealing with Company Law matters, passed the orders in his Chamber by observing thus: It would be sufficient for this Court, if we make our observations to deprecate the way His Lordship took up the matter on various dates subsequent to the passing of the decree and sought to pass various orders relating to sale of the property in favour of the intending purchaser Nani Gopal Paul and others at a price of Rs. 60 lakhs, when there were other offers on the field of a higher denomination and magnitude. Judicial property prevents us from making further comments in respect of the manner. His Lordship directed Mr. Gour Roychoudhury, the Receiver to make the choice relating to the intending purchaser with full rights to make a contract with the intending purchaser in the manner it was so done. If there were other offers on the field, the court would have been vigilant enough to scrutinise such offers whatever they were worth and there ought to have been a due application of mind in this particular perspective. Sadly enough that was not so done in the present case. 4. We are of the view that we can take suo motu judicial notice of the illegality pointed out by the Division Bench, committed by the single Judge of the High Court in bringing the properties to sale. Accordingly, we are of the view that the circumstances are sufficient to vitiate the validity of the sale conducted by the court Receiver as approved by the learned single Judge. Confirmation of sale was illegal. Though, as contended by Sri. Ganesh that normally an application under Order 21 Rule 89 or 90 or under Section 48 CPC need to be filed within limitation to have the sale conducted by the court set aside and that procedure need to be insisted upon, we are of the view that this Court or appellate court would not remain a mute or helpless spectator to obvious and manifest illegality committed in conducting court sales. We are informed and it is not disputed that the appellant had deposited only Rs. 5 lakhs and balance amount was assured to be deposited only after delivery of possession. That also would be illegal. 14. I am, therefore, clearly of the view that the impugned sale is liable to be set aside. So far as reimbursement to the auction purchaser with regard to refund of his auction amount deposited by him is concerned, he is free to seek refund of the said amount from the executing Court. The petitioner shall, however, be liable to pay interest to the auction purchaser, over the amount deposited by the later, from the date of deposit till 30.6.2010 at the same rate as in the decree herein (6% per annum%). Time to deposit interest shall be 30 days from today i.e., on or before 30.6.2010. From out of the amounts deposited by the petitioner to the credit of EP, as referred to above, the decree holder shall be entitled to withdraw the same without furnishing any security. The civil revision petition is accordingly allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J May 31st , 2010 DSK [1] (1995) 3 SCC 579