AI Structured Summary
Not yet generated for this judgment
Judgment
S. Ashok Kumar, J.—The defendants 5 and 6, husband and wife, who lost their case before the trial court and the first appellate court are
the appellants herein.
The brief facts which led to the filing of the suit in O.S.No:1183 of 1982 on the file of the District Munsif, Coimbatore, are as follows:-
The suit property in an extent of 8 cents and 116 sq.ft., within the Coimbatore Corporation limits is a house plot and the same belonged to the third
defendant, Venugopal. By a registered sale deed dated 12.11.1970, the third defendant sold the suit site to the plaintiff Sakunthala for a sum of
Rs.6,000/= and possession was also delivered. But the property tax arrears for two half years at Rs.67.40 per half year was in arrears payable by
the vendor. Admittedly, the sale was not informed to the Municipality both by the purchaser (plaintiff) and by the vendor, the third defendant and
consequently, no mutation of records was effected. A suit in O.S.No:986 of 1973 was filed by the Coimbatore Municipality for arrears of 6 half
years 2/69-70, I & 2/70-71, 1 & 2/71-72 and 1/72-73 for Rs.406.76 at Rs.67.40 per half year (two half years payable by the third defendant
and four half years payable by the plaintiff) against the third defendant, who was the registered owner, claiming a charge. On 2.8.1973 the third
defendant though entered appearance, but remained ex parte and an ex parte preliminary decree for sale of the charged property was passed on
7.8.1973, followed by a final decree being passed on 16.1.1976, as seen from Ex.A.16, suit register. Subsequently, E.P.No.262 of 1976 was
filed for sale of the property for a sum of Rs.406.76 fixing the upset price at Rs.20,000/= in the sale proclamation. Since there was no bidders,
E.A.No.284/79 was filed by the Municipality to reduce the upset price to Rs.10,000/= and in the affidavit filed in support of the said application
the Municipality-decree holder averred that the property cannot be sold for more than Rs.5,000/= and that it is in a dilapidated condition and that
the decree is of 12 years old. The above two reasons found in the affidavit filed in support of the application by the Municipality are false, because
the property was only a house site and not a building and therefore dilapidated condition does not arise and the decree was only 3 years old and
not 12 years old. The said E.A.No. 284/79 is marked as Ex.A.9. On 23.3.1979 the said application was allowed without notice to the judgment
debtor reducing the upset price to Rs.10,000/=. On 6.8.1979, court auction was conducted and the first defendant, who is the wife of the third
defendant-judgment debtor purchased the property for a sum of Rs.8,010/=. On 11.10.1979, the sale was confirmed and on 21.3.1980
possession was delivered through court to the first defendant-auction purchaser. On 22.8.1981, the first defendant, auction purchaser sold the
property to M/s.Ramans, the 4th defendant who was impleaded later in 1986. On 10.6.1982, Sakunthala, the plaintiff filed the present suit against
the first defendant, auction purchaser (wife of the third defendant), the second defendant, mother of the third defendant, and the third defendant
R.Venugopal, the original owner i.e., the plaintiff''s vendor. However, the decree holder, Coimbatore Municipality was not impleaded as a party in
the suit. On 16.5.1984, the 4th defendant, M/s.Ramans, sold the property to the fifth and sixth defendants for a sum of Rs.65,000/= and along
with D.4, D.5 and D.6 were also impleaded as parties more than three years after the court sale. The defendants 2 and 4 remained ex parte before
the trial court. The plaintiff did not offer herself for cross examination and her auditor was examined as P.W.1. The defendants 1 and 3 have also
not been examined.
The trial court decreed the suit as prayed for holding that (i) Ex.A.1 ale deed by the third defendant give good title to the plaintiff (ii) third
defendant''s name continued in Municipal Registers and the third defendant suppressed the tax arrears to the Plaintiff; (iii) third defendant remained
ex parte and allowed the decree to be passed suppressing the filing of the suit to the plaintiff; (iv) third defendant did not avert the sale by paying
the small sum of Rs.406.76 when he had ability to pay as admitted by D.W.1 and thus fraudulently allowed the property to be sold in Court
Auction without any objection; (iv) thus the third defendant purchased the property in the name of his wife the first defendant in the court auction
sale; (v) the upset price fixed at Rs.20,000/= was reduced to Rs.10,000/= without notice to the judgment debtor on false averments in the affidavit
in E.A.No.284/79 that the decree was 12 years old and the property was in a dilapidated condition, but the property was sold for Rs.8,010/=,
much less than the reduced upset price and therefore, the auction sale is a nullity; (vi) the first defendant is the wife of third defendant, but the first
defendant in her written statement claimed that she has not married D.1 and not living with him and D.3 also in his written statement claimed that
D.1 is not his wife. But their contentions were falsified by Exs.C.1 and C.2 being vakalat forms and Ex.A.18, ration card based on E. form and
Ex.A.19 voters'' list and thus the denial of husband and wife relationship by D.1 and D.3 proved as fraud and therefore the court sale was vitiated
by fraud; (vii) non examination of the first defendant-auction purchaser and the third defendant- judgment debtor was fatal and the third
defendant''s sending information to the plaintiff about the court auction sale by RPAD giving a wrong address is fraudulent as seen from Ex.B.1;
(viii) the 5th and 6th defendants were aware of the court sale and also notice of Ex.A.1 and therefore they are not bona fide purchasers for value;
(ix) as per the Commissioner''s report and as seen from the recitals in Ex.A.1, the plaintiff is in possession of the suit site; (x) the third defendant
had no title on the date of prior suit and execution proceedings; (xi) u/s 88(4) of the District Municipalities Act, transfers must be notified to the
Municipality and u/s 55(2) of the Transfer of Property Act, vendor shall protect the rights of the vendee; (xii) the court auction sale is invalid for
want of notice under Order 21 Rule 66 CPC when the upset price was reduced and the application itself was filed u/s 151 and not under Order
21 Rule 66; (xiii) court auction sale conducted without filing of the encumbrance certificate for 12 years and therefore the sale is void and the first
and third defendants have no explanation in this behalf; (xiv) in the only encumbrance certificate, Ex.B.3 produced, plaintiff''s name not found and
therefore the said certificate is a manipulated one and adverse inference be drawn for non appearance of the first and third defendants; (xv) the
contention that the Municipality was a necessary party under Order 21 Rule 92(4) CPC was rejected since it was held that the sale itself is a
nullity. On appeal, the first appellate court also concurred with the findings of the trial court. Hence the Second Appeal by the 5th and 6th
defendants.
At the time of admission, the following substantial questions of law were framed by this court for consideration:- (a)Whether a third party to a
decree can question a court sale? (b)whether irregularities in fixation of upset price is a ground to nullify a sale long after its confirmation and after
the property has changed hands many times? (C)Whether failure to issue notice in an application to lower the upset price will nullify the sale itself?
(d)Whether a sale can be nullified on the ground that the auction purchaser is the wife of the judgment debtor? (e)Whether the charge created by
the operation of Sec.85 of the District Municipalities Act will not be sufficient to convey a good an valid title to a person purchasing such property
from the charge holder through court? (f)Whether a decree holder is not necessary party in a suit to nullify the execution proceedings conducted by
that decree holder? (g)Whether the provisions of Order XXI Rule 94 are not mandatory? (h)Whether an affidavit stating a low upset price, would
be a ground to nullify the sale itself?
Mr.T.R.Mani, learned senior counsel appearing for Mr.Srinath Sridevan, learned counsel for the appellants would contend as follows:-
(i)Allegations of fraud is made against the decree holder-Coimbatore Municipality in the Plaint, but it was not made as a party and the sale is
therefore against Order 21 Rule 92(4) CPC which is fatal and the suit is liable to be dismissed for non joinder of necessary party.
(ii)The 4th defendant, to whom the 1st defendant auction purchaser sold the property on 22.8.1981, being the actual owner on the date of filing of
the suit i.e., on 10.6.1982, was not impleaded in the suit, but he was impleaded at a belated stage during 1986 after the period of limitation was
over.
(iii)The plaintiff is a derivative title holder claiming under the third defendant-judgemnt debtor and Section 47 CPC is a bar to the suit.
(iv)The plaintiff was not examined in the box, and on behalf of her, her Chartered Accountant, who is also the Auditor for the first and third
defendants was examined as P.W.1;
(v)Whether the upset price was further reduced from Rs.10,000/= to Rs.8,000/= and whether any encumbrance certificate was filed in the
Execution Proceedings can be decided only in the presence of the decreeholder;
(vi)In the plaint, no fraud was alleged and no particulars were given in the Plaint as required under Order 6 Rule 4;
(vii)The plaintiff is guilty of not getting the mutation effected as required u/s 88 (4) of the District Municipalities Act and she cannot take advantage
of her own wrong.
Per contra, Mr.M.S.Krishnan, learned counsel appearing for the respondents/plaintiff would contend that in the Plaint there was no allegation of
fraud pleaded against the decree holder, but all the allegations of fraud were pleaded only as against the first and third defendants as seen from
Paragraph Nos:7,8,9,11 and 12 and therefore the plaintiff is entitled to ignore the proceedings viz, the earlier suit and execution proceedings and
also the court auction sale. According to the learned counsel for the respondents, the third defendant remained ex parte in the suit and also
remained silent throughout the Execution Proceedings and thus was a colluding party for his wife, the first defendant to purchase the very same
property which he has sold to the plaintiff, in the court auction sale, which clearly shows that both the first and third defendants have committed a
calculated fraud and though they were not examined in the trial, the documents themselves would speak of the fraud committed by them. Thus it is
a case of res ipsa loquitur ant the third defendant very methodically played a fraud on the Court itself. The 4th, 5th and 6th defendants claim title
under the first defendant and if the first defendant''s title is vitiated by fraud, then the 4th, 5th and 6th defendants cannot stand on their own legs.
The 4th 5th and 6th defendants being subsequent purchasers cannot get a better title than the first defendant and the first defendant cannot have
any title to the property, because it is vitiated by fraud.
According to the learned counsel, Order 21 Rule 92(4) CPC will apply only where there is a bona fide or genuine dispute of title in a suit filed
by a third party challenging the judgment debtor''s title by filing a suit against the auction purchaser, the decree holder and the judgment debtor shall
be necessary party to the suit. In this case there is no dispute with regard to the title of the plaintiff and the sale of the property in the court auction
is null and void due to the fraud committed by the first and third defendants.
It is pertinent to note that there is no prayer for setting aside the sale, because the sale itself is void ab initio. As regards the contention that the
fourth defendant was impleaded after the period of limitation was over, the learned counsel for the respondent-plaintiff contended that the plaintiff
was a non resident Indian living at Malaysia and she was not aware that the first defendant had sold the suit property to the fourth defendant and
only from the written statement filed by the first defendant during August 1983, wherein in Paragraph 10 she has mentioned that she has sold the
property (name and address of the purchaser not mentioned), the plaintiff searched for the purchaser and thereafter impleaded him in 1986 along
with defendants 5 and 6 who purchased the property by then from the fourth defendant. It is pertinent to note that the 4th 55h and 6th defendants
did not raise any objection for impleading them in the suit.
Mr.T.R.Mani, learned senior counsel would strenuously canvass the following points in favour of the appellants: (i)There is violation of Order
21, Rule 92(4) CPC; (ii)Expiry of limitation in impleading the 4th defendant; (iii)Failure to implead the decree holder-Coimbatore Municipality,
being a necessary party, the suit fails for such non joinder of the necessary party.
As regards the first contention that the failure to implead the decree holder who is a necessary party, is fatal to the suit, the Order 21 Rule
92(4) of the CPC is extracted herein for reference:-
92.SALE WHEN TO BECOME ABSOLUTE OR BE SET ASIDE
(1)- XXXXXXXXXX
(4)Where a third party challenges the judgment debtor''s title by filing a suit against the auction purchaser the decree holder and the judgment
debtor shall be necessary parties to the suit.
Though it was a case law before the amendment, the same was made as a law inserted by Act 104 of 1976. It is true that the Coimbatore
Municipality, the decree holder is not impleaded as a party by the plaintiff. A careful reading of Order 21 Rul3 92(4) CPC would show that when
a third party challenges the judgment debtor''s title by filing a suit against the auction purchaser, the decree holder, judgment debtor shall be
necessary parties to the suit. AS far as this case is concerned, on the date of filing of the suit or on the date of execution of the decree or even at
the time of filing of the suit by the Municipality, the judgment debtor had no title to the suit property. The suit property was sold to the plaintiff by
Ex.A.1, dated 12.11.1970. But the Municipality filed the suit only in the year 1973 and therefore on the date of filing of the suit, the judgment
debtor, the third defendant had no title to the suit property. Therefore, under Order 21, Rule 92(4) CPC, the challenge must be with regard to the
title of the judgment debtor when the property has been sold in auction. The Municipality has wrongly sued the third defendant as a person having
title over the property though the tittle has been passed on to the plaintiff even three years earlier prior to the filing of the suit.
The learned senior counsel appearing for the appellants would submit that the plaintiff has alleged fraud on the part of the Coimbatore
Municipality and therefore, the Coimbatore Municipality, the plaintiff in O.S.No.986 of 1973 should be made as a party. A careful reading of the
Plaint would show that the plaintiff has not made any allegation of fraud against the Coimbatore Municipality. On the other hand, the plaintiff has
made allegations against the first and third defendants who are said to have played a fraud upon the court. The plaintiff has narrated the fraud as
follows:- (a)Third defendant has not informed the Municipality about the sale of the property to the plaintiff and thus has violated Section 55(2) of
the Transfer of Property ACt, according to which the vendor should protect the rights of the vendee.
(b)The third defendant remained ex parte in the suit filed by the Municipality and did not inform the plaintiff about the suit.
(C).During the execution proceedings, even after receipt of notice the third defendant did not inform the plaintiff about the proceedings against her
property. But sent a letter to a wrong address which never reached the plaintiff.
(d)The suit claim was only Rs.406/=. The third defendant though had sufficient means to pay the the same, did not pay the money and allowed the
suit to be decreed.
(e)The third defendant should have made arrangements for the first defendant (his wife) to purchase the property in the court auction, though the
first and third defendants claimed in their written statements that they are not husband and wife, the plaintiff has proved such relationship by
producing Exs.A.18,19 and 20, and now the learned senior counsel Mr.T.R.Mani would concede that they are really husband and wife. Thus it
could be seen that the firs and third defendants colluded together and committed a calculated fraud on the court. According to Mr.M.S.Krishnan,
learned counsel for the respondents when the property was sold by fraud, the plaintiff is entitled to ignore the same.
In support of his contention, the learned counsel for the respondents relied on the decision in Chengalvaraya Naidu v. Jagannath reported in
1994 (1) L.W. 21, the Supreme Court has held as follows:-
Fraud avoids all judicial acts, ecclesiastical or temporal as observed by Chief Justice Edward Coke of England about three centuries ago. It is the
settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a
judgment/decree b the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be
challenged in any court even in collateral proceedings.
14.The facts of the above case is almost similar to the facts of this case also and the Supreme Court has held that a person whose case is based on
falsity has no right to approach the court and he can be summarily thrown at any stage of the litigation. Further, when no fraud is alleged against the
Municipality, there s no necessity to implead the Municipality-decree holder as party in this suit. The necessary party is one without whom no order
can be made effectively and a proper party is one whose presence is necessary for a complete and final decision on the issue involved in the
proceedings.
In 1997 (2) L.W. 691 (R.R.Square, etc., Vz. Mrs.Shobalatha Debi), K.Sampath,J., had an occasion to consider similar claim with reference
to Order 1 Rule 10 of CPC. After referring to various decisions, the learned Judge has held as follows:-
12.The principle for impleading a third party to a proceeding is avoidance of multiplicity of proceedings and hence the court has no jurisdiction to
add a party, unless it is a necessary or property party. A necessary party is one without who no order can be made effectively and a a proper
party is one whose presence is necessary for a complete and final decision on the questions involved in the proceedings. If the question at issue can
be worked out without any one being brought in, a stranger, should not be added to the litigation. The eventual interest of the party in the fruits of
the litigation cannot beheld to be a true test of impleading the parties according to the Code of Civil Procedure.
xxxxxxxxxx
This is a case where the subsequent agreement holder does not want to be made a party. He is willing to take the risk and as observed by the
Bench in OSA.NO.57 and 58/95 any alienation subsequent to the filing of the suit is hit by the doctrine of lis pendense. The so called subsequent
purchaser is aware of the proceedings and he has definitely bound by the decision in the suit. And again, if parties come to court seeking for
impleding one after another during the course of the proceedings, it will be next to impossible to keep on adding the parities and in such event the
suit can never come to an end.
In Bakthavatsalam v. Anjapuli reported in 2001 (10) L.W. 615 , P.Sathasivam,J.,following the above judgment held as follows:-
In our case, I have already stated that alienators had taken place even prior and after passing of the preliminary decree at the instance of both
the parties. It is also relevant to refer the decision of Ramaprasada Rao,J., (as he then was) in Firm of Mahadeva Rice and Oil Mills and Ors. v.
Chennimalai Gounder (1967) 809 Lw.479, where the learned judge referred to the following passage from In Re: Kelloth Ibrahim Haji and
Others, . The discretion to be exercised by the court under Order 1 Rule 10(2) CPC is subject to two limitations viz.,(1) that the court has no
power to join a person as a party if he could not have even originally impleaded under Order 1, Rule 1 or Rule 3 CPC and (2) that the presence of
the person added must be necessary to effectually and completely adjudicate upon and settle all points involved in the suit. If persons who are
sought to be impleaded have no subsisting rights over the properties and they are sought to be impleaded only for the purpose of getting their
evidence would not be proper to make them parties to the suit and the petitioners'' apprehension that they would be driven to the necessity of filing
a separate suit against these persons was not a sufficient justification to compel the plaintiff to implead them as parties to the suit.
10)It is clear that a person is not to be added as a defendant merely because he or she would be incidentally affected by the judgment. The main
consideration is whether or not the presence of such a person is necessary to enable the court to effectually and completely adjudicate upon and
settle the questions involved in the suit. If the question at issue between the parties can be worked out without any one else being brought in, the
stranger should not be added as a party. In the light of the language used in Order 1 Rule 10 (2) of CPC as well as various decision and in the light
of factual position in our case that preliminary decree has already been passed and application for passing of final decree is pending before the
Court below, I am of the view that purchasers of properties during the pendency of the suit are neither necessary nor proper parties inasmuch as
they would be bound by the decree n the suit in view of the principle enunciated in Section 52 of the Transfer of Property Act. I hold that the
parties sought to be impleaded as defendants in the suit and respondents in the final decree application are neither necessary nor proper parties. I
have already stated that the alienees respondents 4 to 6 herein are not want to be made a party an they are willing to take the risk. It is settled law
that any alienation subsequent to the filing of the suit is hit by the doctrine of lis pendense. The subsequent purchasers are aware of the proceedings
and they are definitely bound by the decision in the suit and the proceedings.
The observations of Justice K.Sampath, followed by Justice P.Sathasivam, are amply applicable to the facts of this case also.
In Velumani v. Chenna Basavan and 7 Ors. reported in 1991 (II) L.W. 587, M.Srinivasan,J., (as His Lordship then was) while dealing with
Section 88 of the District Municipalities Act, held as follows:-
u/s 88 of the District Municipalities Act, whenever the title of any person primarily liable to the payment of property tax on any premises is
transferred, the person whose title is transferred and the person to whom the same is transferred shall within three months after the execution of the
instrument of transfer or after its registration, give notice of such transfer to the executive authority of the Municipality. Under Sub Section (4) if a
transfer is made without such notice, the transferor shall, in addition to any other liability which he incurs through such neglect, continue to be liable
for the payment of property tax until he gives notice of the transfer to the Municipality. It is also stated that such liability is independent of the
liability of the transferee of the payment of tax. Learned Counsel for the appellant contends that in view of the provisions in S.88, making the
transferee liable for the payment of tax in the absence of notice to the executive authority of the transfer, and at the same time leaving in tact the
liability of the transferee for payment of tax, the suit filed by the Municipality against the transferor was maintainable and that by such a suit, the
Municipality was in a position to enforce the charge against he property. according to him, even though the transferee was not made party to the
suit, he will be bond by the result of the se proceedings.
I have no hesitation to reject the above contention. The language of S.88 of the District Municipalities Act does not warrant such a proposition
of law. The Section only makes the transferor continuously liable for payment of tax. It is open to the Municipality to recover the tax from the
transferor in the absence of any notice from him of the transfer and proceed against him and attach his properties for recovery of the tax. If, on the
other hand, the Municipality wants to enforce the charge over the property, it shall do so only by taking proceedings against the transferee, who
has become the owner of the property. The ownership of the properties does not get lost by the absence of any such notice to the Municipality,
either by the transferor or by the transferee. There is no provision of law, which declares that by neglect on the part of the transferor or transferee,
the transfer will come to an end and the transferee will cease to be the owner; or does it permit the Municipality to take proceedings even without
impleading the transferee to enforce the charge as against the property. Hence, I reject the contention urged by learned counsel for the appellant.
xxxxxxxxxx
It is elementary principle that in court auction sales, there is no warranty of title and the principle of caveat emptor will apply to such sales (vide
The Ahmedabad Municipal Corporation of the City of Ahmedabad Vs. Haji Abdulgafur Haji Hussenbhai, .
It has been repeatedly held that if an execution proceedings taken against a property without impleading the owner of the property, as a party
thereof, the proceedings are null and void and any sale held in such execution is a nullity. In Kairajmal v. Daim ILR 32 Cal 296 the Privy Council
observed as follows:-
Their Lordships agree that the sales cannot be treated as void or now be avoided on the grounds of any mere irregularities of procedure in
obtaining the decrees or in the execution of them. But, on the other hand the court had no jurisdiction to sell the property of persons who were not
parties to the proceedings or properly represented on the record. As against such persons, the decrees and sales purporting to be made would be
a nullity and might be disregarded without any proceeding to set them aside. If authority be desired for these elementary propositions it may be
found in the judgment of Sir Barnes Peacock in Kishen Chunder Ghose v. Asheerun 1863 I March, 647. A similar ruling was rendered in AIR
1935 139 (Privy Council) .
In Jagaqnnath v.Perumal Naidu reported in 1955 (I) MLJ 114 a Division Bench of this Court held that in a case where no notice was actually
given to certain members of a joint family, the defendants therein, who are owners of the property, the entire proceedings were ab initio null and
void and the sale on an earlier attachment of property could not therefore convey any of their rights in favour of the purchaser.
In view of the above decisions, it can be safely concluded that where fraud is proved, the whole proceedings will fail and the suit and execution
proceedings are a nullity and the parties affected by such fraud is entitled to ignore the same.
The next contention of Mr.T.R.Mani, learned senior counsel appearing for the appellants is that the fourth defendant was impleaded as a party
after the period of limitation has become over and the suit is not maintainable. According to him u/s 3 of the Limitation Act, it is the duty of the
court to dismiss the suit unless the plaintiff shows on what ground the suit is in time. In support of such contention, the learned senior counsel would
press into service the decision in Sha Manmall Misrimall Vs. K. Radhakrishnan, wherein a Division Bench of this Court held that under Order 7
Rule 6 the plaintiff must show in his pleading, the grounds upon which an exemption from Limitation is claimed and it is not open to him to rely on
the exemption not pleaded in the plaint. In this case, the fourth defendant purchased the property from the first defendant on 22.8.1981. The suit
was filed on 10.6.1982 and the fourth defendant was impleaded only in 1986. According to the learned senior counsel appearing for the
appellants, the impleading of the fourth defendant is barred by limitation u/s 21 read with Section 3 of the Limitation Act and hence the suit is not
maintainable. For which, the Learned counsel appearing for the respondents would contend that the plaintiff was living in Malaysia and she was not
aware of the sale in favor of the fourth defendant and only after the first defendant filed a written statement alleging that she has already sold the
property even without mention the name of the vendee, the plaintiff has searched for registers and came to know about the fourth defendant''s
purchase and thereafter filed the application to implead the fourth defendant and also the fifth and sixth defendants, the appellants herein, who have
purchased the suit property during the pendency of the suit. It is pertinent to note that neither the fourth defendant, nor the 5th and 6th defendants
have made any objection for impleading them as a party. Under Art.65 of the schedule of the Limitation Act, in a case for recovery of possession,
the period of Limitation prescribed is 12 years.A reading of the plaint would show that the plaintiff pleaded for declaration of her title as owner of
the property and to direct the defendants to deliver possession of the suit property.
In Pavan Kumar and Another Vs. K. Gopalakrishna and Another, a Division Bench of the Andhra Pradesh High Court has held as follows:-
The suit is essentially and primarily a suit for possession based on title. The mere fact that the declaration of title is also sought for therein does not
bring it within Art.58 or 113 so as to attract the three years period of Limitation, as observed by the learned single Judge. There is practically no
controversy as to title for the simple reason that the defendants recognise the plaintiff as the predecessor in title and it is the specific case of the
defendants that the plaintiff sold the property to Choudary Rajanna, who in turn effected the sale to them. As already noticed, the sale by Gopal
Krishna to Choudary Rajanna was disbelieved by the trial court. Under these circumstances, as far as the title of the plaintiff is concerned, there
could hardly be any controversy that a formal declaration of title fro the court was fought for, may be by way of caution. Realising the difficulty in
pursuing the argument as regards inapplicability of Art.65, the learned counsel for the appellants has chosen the obvious course of highlighting the
alternative argument that even if ARt.65, applies, the suit is barred.
In Mrs. Indira Bhalchandra Gokhale (deceased by LRs) Vs. Union of India and Another, , a learned Judge of the Bombay High Court held as
follows:-
9...In the instant case, the plaintiff was seeking a declaration. Truly speaking, a declaration was not necessary for once it is found that the
requisition was without notice to the owner and the acquisition was without the same being sanction by clauses (a) and (b) of S.36(1) of the Act,
plaintiff can ignore both the orders. The orders being void can be treated as such and no consequence ensues to the suitor proceeding with the
main relief ignoring acts which have no existence in the eyes of law. The fact that the plaintiff claims a declaration does not mean that no other relief
can be granted to her. The main relief which she is claiming is not the declaration even though she may describe it as the principal relief. In
construing these matters what is necessary is to take an overall view of the matter. Thus, it was not necessary for the plaintiff to seek any
declaration in respect of the void orders. The suit is primarily one for possession and mesne profits. Her failure to obtain a declaration is of no
consequence of the order which is put forth by the defendants to justify their action is non est in the eyes of law. The dispossession of the plaintiff
took place on 20h May 1963 and the suit was filed on 25.6.1971. Being a suit for recovery of possession and brought within 12 years the same
was within Limitation. As far as this case is concerned, the main prayer sought for by the plaintiff is to get recovery of possession and incidentally
she also wants to confirm her title to the property and therefore the suit is well within time.
The plaintiff has prayed for recovery of possession as well as declaration of her title. Her main prayer is for recovery of possession and incidentally
she wants to confirm her title an thus the period of limitation is 12 years as per Article 65 of the Limitation Act.
The leaned senior counsel appearing for the appellants would contend that though fraud was alleged in the Plaint, no particulars were given in
the plaint, and therefore the same is in violation of Order 6 Rule 4 of the Code of Civil Procedure. Order 6 Rule 4 of the CPC reads as follows:-
4.PARTICULARS TO BE GIVEN WHERE NECESSARY:- In all cases, in which the party pleading relies on any misrepresentation, fraud,
breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in
the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.
As far as this case is concerned, the plaintiff alleged fraud on the defendants 1 and 3 in paragraphs 7,8,9,11 and 12 of the plaint and therefore,
it is not correct that the plaintiff has not narrated by giving necessary particulars in the plaint. In fact, the plaintiff has not questioned the decree
obtained by the Municipality, but only questioned the fraudulent manner in which the execution proceedings, by which the sale was conducted and
the first defendant purchased the suit property. Even assuming that there is a procedural irregularity on the part of the plaintiff, the procedural law
cannot be pressed into service to nullify a fraud. The plaintiff has prayed that fraud has been committed by the first and third defendants and some
irregularity in the procedure alleged by the appellants cannot be invoked to nullify and justify the fraud.
In 1990 SC 1828 Raj Kumar Rajindra Singh v. State of Himachal Pradesh, the Supreme Court has observed as follows:-
It is well to remember that the CPC is a body of procedural law designed to facilitate justice and it should not be treated as an enactment
providing for punishments and penalties. The laws of procedure should be so construed as to render justice wherever reasonably possible....
In Visalakshi and Visalakshi Krishnamurthy Vs. Muthiah Chettiar and Others, , Justice S.Mohan (as His Lordship then was) has held as
follows:-
5...But, what I find is that the question whether the judgment debtors had notice or not has to be essentially decided since it is well settled in law
that want of notice under Order 21, Rule 66, Civil Procedure Code, would vitiate the entire sale and the sale is rendered void. That question has
not been gone into and it was for that purpose the remit order was made, of course, after giving notice to the decree holder. Therefore, I do not
think that merely on the ground that an appeal did not lie, I should interfere. Instead, I should follow the salutary principle laid down in
Bhubaneswar Misra and Others Vs. Sakuntala Devi and Others, which is as follows:-
If the court finds that by exercising its power u/s 115, it is going to set aside a correct and logical order merely on the ground of lack of jurisdiction
and in its wake it brings into existence a wholly illegal and incorrect order, then it may refuse to exercise its revisional jurisdiction as that would be
giving effect to an illegal and incorrect order.
In Siddappa v. Lakshmamma AIR 1965 Mys 313 it has been held as follows:-
It is well established that the High Court is not bound to interfere u/s 115, Civil Procedure Code, except in aid of justice. Thus, where the order of
a Subordinate Court, has brought about a just result and where the setting aside of that order would bring about an unjust result, the High Court
would not exercise its discretion u/s 115, Civil Procedure Code, and interfere with such order, even though the order suffers from an illegality or
irregularity.
Shah Jagmohandas Purshottamdas and Another Vs. Jamnadas Vrajlal Gandhi and Others, lays down as follows:-
Section 115, Civil Procedure Code, vests discretionary power in the High Court. The High Court is not bound to interfere in revision in all cases in
which it is found that the subordinate Court has acted without jurisdiction or failed to exercise jurisdiction or acted illegally or with material
irregularity in the exercise of jurisdiction. The High Court will exercise its reversional powers only in aid of justice and not merely go to give effect
to a technicality which will not further the ends of justice. If the interference of the High Court will bring about injustice or encourage abuse of the
process of the court or promote mere technicality without advancing the cause of justice or be futile, the High court will not interfere in revision,
even though the conditions specified in in any of the three clauses of the section are satisfied.
It has been held in T.P. Kuppuswami Pillai Vs. Alwar Chettiar, as follows:-
The reversional powers of the High Court are not exercised unless it appears to the High Court that injustice has been done to a litigant. The High
Court will certainly not use its reversional powers to bring about injustice. Hence where it is clearly proved that defendant owes money to the
plaintiff and a decree is passed against him,the High Court will not exercise reversional powers on a point of jurisdiction whether the suit lies in the
Small Cause side or the Original Side if the Court as such interference will be bringing about an injustice.
From the decisions reported above, it is clear that even if some irregularity as alleged is proved, but otherwise the decision of the lower court is
just, the High Court should not interfere to bring about injustice or encourage abuse of process of the court or nullify a fraud played upon the court
and promote mere technicality without advancing the cause of justice.
Another important aspect in this case is non compliance of Rule 190 of the Civil Rules Practice, viz, the encumbrance certificate. Under Rule
190(4), the party applying for sale shall produce a certificate of the result of the search as required under Rule 191. Rule 191 reads as follows:-
SEARCH OF ENCUMBRANCES: In the case of sale of immovable property, the applicable shall cause a search to be made in the office
of the Registrar of Assurances of the district or sub district in which the property is situate. If a previous search has been made in the suit or matter,
the search shall be made from the date on which the previous search was made, so that the whole period shall be not less than 12 years, or if no
search has been made, then for a period of not less than 12 years (prior to the date of the execution application on which the sale is ordered).
In this case, the encumbrance certificate from 1.1.1968 to 1.9.1980 produced by the defendant has been marked as Ex.B.4 in which the name
of the first defendant alone is mentioned as the purchaser through court auction sale on 4.12.1979. In Ex.B.5 encumbrance certificate for the
period from 22.7.1980 to 20.7.1981, it is mentioned that there is no encumbrance in the property. In Ex.B.6 encumbrance certificate which is for
the period from 21.7.1981 to 9.4.1984, the name of the first defendant alone is mentioned as executant on 22.8.1981. The name of the vendee is
not mentioned i.e., the 4th defendant is not mentioned. Exs.B.4 to B.6, particularly, Ex.B.4 which is for 12 years from 1.9.1968 to 1.9.1980 is
silent about the sale in favour of the plaintiff by the third defendant. But the sale in favour of the first defendant by the court is mentioned therein.
Therefore, it is clear that the defendants have stage managed to produce manipulated encumbrance certificates in which the name of the plaintiff is
absent.
Yet another aspect is that there is also no proof as to how the upset price was reduced from Rs.10,000/- to Rs. 8,000/-. It is mentioned in
Ex.A.9 that the upset price was reduced from Rs.20,000/- to Rs.10,000/-. But, from a perusal of Ex.A.16, Suit Register, it is not clear as to how
the property was sold in court auction for less than Rs.10,000/-. There is no notice to the plaintiff before such sale. Normally u/s 114(e), the court
can presume the acts done by a court have been so done properly. But in this case, the plaintiff has proved the upset price was reduced from
Rs.20,000/- to Rs.10,000/- as per Ex.A.9 that too by filing an application by the decree holder-Municipality (that the decree is 12 years old and
that the property is in dilapidated condition when the property is a site and the decree is of three years old). When the 0plaintiff has proved that the
property was sold below the upset price, fixed by the court, it is the duty of the defendants-appellants to prove that the upset price was further
reduced from Rs.10,000/- to Rs.8,000/-. In this regard, the learned counsel for the appellants would contend that in the Plaint itself it is mentioned
that the upset price was reduced to Rs.8,000/-, which pleading is not supported by any documentary evidence. Therefore, the alleged sale in
favour of the first defendant is vitiated due to fraud and therefore the plaintiff is entitled to ignore the same. For the reasons stated above, all the
questions of law are answered against the appellants.
In the result, the second appeal is dismissed, confirming the judgment and decree of the court below. However there is no order as to costs.