Chilamkurti Bala Subrahmanyam vs Samanthapudi Vijaya Lakshimi & Anr

4) The suit schedule property was, accordingly, attached by the executing Court under a warrant. Notice was, accordingly, issued to respondent No.1-judgment debtor in respect of the said executing proceedings on 14.07.1999 to which she filed counter affidavit raising certain objections. On 31.09.1999, the executing Court overruled the objections raised by respondent No.1 in her counter affidavit and fixed 22.09.1999 as the date of settlement of terms. On 22.09.1999, the terms of proclamation of sale were settled fixing the date for sale of the said property on 17.11.1999.

5) Pursuant to the above referred proceedings, proclamation of the sale was issued on 05.10.1999 by the executing Court under Order 21 Rule 64 of the Code mentioning therein the conditions of sale. Proclamation of the sale was entrusted to the Process Server of publication on 27.10.1999. The Process Server gave endorsement on 02.11.1999 that the sale proclamation was affixed to the house/suit schedule property and also by beat of tom tom near the property and also affixed the same on the notice board of the Court. On 04.11.1999, sale warrant was issued to the Bailiff to give 15 days’ notice by affixing the same in court house, making due proclamation of the suit schedule property. The proclamation of the sale was published in the newspaper on 05.11.1999 stating that the sale would be held on 17.11.1999.

6) On 17.11.1999, the property was brought to auction sale where 7 bidders participated. The appellant herein was the highest bidder of Rs.7,15,000/-. Out of the said bid amount, Rs.1,78,750/- was paid to the Bailiff. The Bailiff filed a return on 18.11.1999 about the sale stating that he published about sale by tom tom and the appellant was the highest bidder and the initial amount was deposited with respondent No.2-Bank after deducting poundage.

9) Challenging the said order, the judgment debtor-respondent No.1 filed an appeal before the High Court.

8) By order dated 20.04.2000, the Senior Civil Judge, Kovvur found no merit in any of the objections raised by respondent No.1 and accordingly dismissed the application.

10) The High Court, by impugned judgment dated 23.12.2005, allowed the appeal and set aside the order of the executing Court, inter alia, holding that if the judgment debtor deposits a sum of Rs.7,15,000/- being the price fetched at the public auction within a period of three weeks from the date of receipt of a copy of the judgment, the sale held would not be given effect to. It was held that if the executing Court feels that the amount deposited by the judgment debtor is sufficient to discharge the decretal amount, it would not be necessary to put the property to auction and the amount so deposited earlier by the auction purchaser shall be refunded to him. It was held that if the amount ordered to be deposited by the judgment debtor is more than the amount due to the decree holder, excess amount, after adjusting the amount due to the decree holder/auction purchaser, be refunded to the judgment debtor. It was held that no clear 15 days’ notice of sale as per Rules was given and hence sale held is irregular. It was lastly held that in default of payment of Rs.7,15,000/- within the stipulated period, the appeal shall stand dismissed.

20) Secondly, the details of the valuation of the property were duly mentioned, namely, decree holder's valuation at Rs.2,75,000/- likewise, Amin’s valuation at Rs.4 lacs whereas the property was sold in auction for Rs.7,50,000/-. In this view of the matter, it could not be said that the bidders did not know the valuation or/and that it was not mentioned in the auction papers.

21) Thirdly, judgment debtor did not adduce any evidence nor brought any bidder to purchase the property for a higher price than the purchase bid (Rs.7,50,000/-) except to say in the application that value of the property was between Rs.12 lakhs to Rs.14 lakhs. In our view, this objection has no substance for want of any evidence.

23) The executing Court, therefore, substantially and in letter and spirit followed the procedure prescribed under Order 21 Rules 64 and 66 of the Code while conducting the sale of the property in question.

25) In the light of aforesaid discussion, we are of the considered view that none of the objections raised by respondent No.1 had any merit and nor any of the objections constituted any kind of material irregularities so as to enable the Court to set aside the sale under Order 21 Rule 90(2) of the Code. So far as the plea of fraud was concerned, admittedly, it was not raised and, therefore, it did not fall for consideration.

27) In view of foregoing discussion, we are unable to agree with the reasoning and the conclusion arrived at by the High Court which is factually and legally unsustainable. Its view is not in conformity with the law laid down in the case of Saheb Khan (supra).

28) As a result, the appeal succeeds and is allowed. Impugned order is set aside and that of the executing Court restored.

May 02, 2017