IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.08.2011 CORAM THE HON'BLE MR. JUSTICE V.PERIYA KARUPPIAH A.No.3651 of 2011 in Pro.A.No.2 of 2011 in E.P.No.193 of 2004 in C.S.No.1370 of 1993 and A.No.3652 of 2011 in Pro.A.No.3 of 2009 in E.P.No.20 of 1996 in C.S.No.1126 of 1993 ORDER Application No.3651 of 2011 has been filed seeking to condone the delay of 126 days in filing the appeal against the order of the learned Master dated 27.4.2011 passed in Pro.Application No.2 of 2011 in E.P.No.193 of 2004 in C.S.No.1370 of 1993. Application No.3652 of 2011 has been filed to condone the delay of 238 days in filing the appeal against the order of the learned Master dated 24.11.2010 passed in Pro.Application No.3 of 2009 in E.P.No.20 of 1996 in C.S.No.1126 of 1993. 2. Heard Mr.R.Yashod Vardhan, learned senior counsel appearing for the applicant in both the applications and Mr.P.J.George, learned counsel for the respondent in A.No.3651 of 2011 and Mr.K.Doraisamy, learned senior counsel appearing for the respondent in A.No.3652 of 2011. 3. The learned senior counsel Mr.Yashod Vardhan would submit in his arguments that the applicants are the judgment debtors (plaintiffs) in the suit on a compromise decree entered into between the parties and according to the compromise decree the execution proceedings were filed in E.P.No.193 of 2004 in respect of C.S.No.1370 of 1993 and in E.P.No.20 of 2006 in respect of C.S.No.1126 of 1993 and the properties given charge to the decree were brought for attachment and sale. He would further submit in his argument that the property was worth more than Rs.50 crores, but the upset price has been fixed at Rs.50 crores, and the amount would be less than Rs.10 crores but the sale has been combinedly ordered in both the proclamations and in another proclamation in an E.P. Filed on another decree on 10.08.2011 and the said sale if permitted to be conducted it would be amounting to an excess sale. He would further submit that the applicants could not immediately file appeals against the orders of the learned Master in ordering sale on the proclamations in both the E.Ps. He would further submit that no notice was served upon the applicants regarding the proclamation of the sale as well as the auction sale except on 29.07.2011 and the notice regarding the auction to be held on 10.08.2011 was seen struck on the wall of the property to be auctioned. He would further submit that the applicants have invested their hard earned money in the said project and if the sale is permitted to be conducted without giving an opportunity to question and agitate the order passed by the learned Master in ordering sale, the rights of the applicants will seriously be prejudiced. He would further submit in his argument that the said sale schedule to be held on 10.08.2011 is illegal, perse and without jurisdiction and therefore, the applicants may be permitted to proceed in the appeals filed by them against the order passed by the learned Master for condoning the delay of 126 days and 238 days in preferring those appeals, and thereby to allow both the applications. 4. The learned counsel for the respondent in A.No.3651 of 2011 Mr.P.J.George would submit in his argument that the Execution Proceedings were initiated against the applicants only after issuing notice to the applicants in E.P and notice was served and the property was also attached and the proceedings pending before the Execution Court is very much known to the applicants and it is very strange to say that they were not aware of the sale ordered by the learned Master. He would also submit that the allegation that the applicants have made known about the sale only on 29.07.2011 is not sustainable and the applicants have engaged the counsel and they are very much aware of the execution proceedings including the sale ordered by the learned Master. He would further submit in his argument that the proclamation ordered in both the applications were clubbed with another proclamation in Pro.A.No.3 of 2011 in E.P.No.20 of 1996 and the order passed by the learned Master was not appealed in the said E.P and therefore, there is no bonafide on the part of the applicants to seek for condonation of delay. He would further submit that the applicants ought to have satisfied the conscience of the Court for the delay caused in not preferring the appeal in time, but the applicants did not do so. He would therefore, request the Court that the applications seeking condonation of delay caused in filing the appeal may be dismissed. 5. The learned senior counsel Mr.K.Doraisamy would submit in his argument that the decree holder / defendant in the compromise decree was a minor boy and he was granted the decree on the default of the applicant in not delivering the property in time and therefore, the decree holder, who is a minor would be put in loss if the sale ordered by the learned Master on 10.08.2011 is ordered to be stayed or by allowing the condonation applications. He would further submit in his argument that the publication charges in bringing the property to sale would itself amount to Rs.1,20,000/- (Rupees one lakh and twenty thousand only) and the decree amount payable to the respondent / decree holder would be around Rs.14 crores and the reasons submitted by the applicants for condoning the delay are not sustainable. He would also submit in his argument that if for any reason, this Court is of the view to condone the delay, suitable conditions may be imposed for the payment of the decree amount as well as the publication charges incurred by the respondents for publishing the sale. He would therefore request the Court to dismiss the applications. 6. I have given anxious consideration to the arguments advanced on either side. 7. Both the applications are filed by the Judgment Debtors in the E.Ps filed against them to condone the delay of 238 days and 126 days in preferring the appeal against the order passed by the learned Master in bring the property for sale on 10.08.2011. The reasons submitted by the applicant was that they have been served with notice of proclamation of the sale only on 29.07.2011 and they also happened to know the date of sale as 10.08.2011 on seeing the affixture made on the property. 8. No doubt, it is one of the mandatory provisions that the notice in the proclamation of sale shall be served on the judgement debtor even though he is participating in the E.P through counsel or in person. It is not disputed that the applicants were served with the notice of proclamation on 29.07.2011. The present applications were filed by the applicants in order to prefer the appeals against the orders passed by the learned Master by condoning the delay caused therein. Even though, they were made known about the proclamation of sale they have come forward before this Court in a belated stage for condonation of delay in preferring the appeals when especially the sale is fixed at to 10.08.2011. However, the order passed by the learned Master were sought to be questioned in these appeals. In view of the fact that the notice of proclamation was served only on 29.07.2011, I am inclined to entertain the explanation offered by the applicants for condoning the delay in filing the applications. However, the respondents should not be affected by the order of condonation passed in this application. For compensating them, it has become necessary for this Court to direct the applicants to pay a sum of Rs.1,20,000/- (Rupees one lakh and twenty thousand only) incurred towards the expenditure for publication, to the respondents / all the 3 decree holders in E.P.Nos.193 and 194 of 2004 and 20 of 1996, equally i.e., Rs.40,000/- (Rupees forty thousand only) each, before the commencement of sale, i.e., 3.00 p.m., on 10.08.2011. In the case of refusal to receive the said sum by the decree holders, the applicants are at liberty to deposit the said amount to the credit of aforesaid E.Ps. In default to pay/deposit the said sum of Rs.1,20,000/- (Rupees one lakh and twenty thousand only) as aforesaid, both the applications shall stand dismissed without further reference to this Court. In the event, the applications are allowed on payment of the publication charges as already stipulated, the validity of the order passed by the learned Master has to be decided only in these appeals. Therefore, the sale scheduled to he held on 10.08.2011 has to be postponed to some other date on the same sale proclamation preferably on 17.08.2011. If the applicants in both these applications, who are also the judgment debtors in E.P.No.194 of 2004, want to adjourn the sale to be held on 17.8.2011, they are directed to pay a sum of Rs.1,00,00,000/- (Rupees one crore only) in each of the three aforesaid E.Ps. to the respective decree holders, on or before 16.08.2011 and in default to pay any one of the payments to the three decree holders, the adjourned sale scheduled on 17.08.2011 shall be proceeded without any interference. In the event, of these applications not allowed due to the default of the applicants in paying or depositing the publication charges as stated supra, the sale scheduled to be held tomorrow i.e., 10.08.2011, shall be proceeded in accordance with law. 9. With the aforesaid observations, both the applications are ordered. Mra Note: Registry is directed to issue order copy forthwith. Registry is also directed to issue a copy of this order to the learned Master.