K.S.R.M. Sivasubramaniam Chettiar vs Murugesa Mudaliar and Another

Alfred Henry Lionel Leach, C.J.—The appellant obtained a money decree against the second respondent in the Court of the District Munsif

of Tirupur and in execution of that decree attached immovable property belonging to the judgment-debtor. The property was sold by the Court in

execution proceedings on the 23rd February, 1932, the first respondent being the purchaser. The first respondent immediately deposited 25 per

cent, of the purchase price, which was Rs. 715, as required by Rule 84 of Order 21 of the Code of Civil Procedure. The sale proclamation

disclosed that there was a mortgage on the property, but it indicated that the mortgage was invalid. The mortgage was in fact a valid one and

subsequently the mortgagee obtained a mortgage decree. The first respondent did not pay the balance of the purchase money within fifteen days,

as required by Rule 85 of Order 21, but on the 29th February he applied for an order setting the sale aside on the ground of material irregularity in

the publication of the sale inasmuch as the mortgage had been described as being invalid. As the balance of the purchase money had not been paid

into Court the District Munsif held that there had in law been no sale and therefore there was no need for an order setting aside the sale. On this

ground he dismissed the first respondent''s application and by a subsequent order directed that his deposit of 25 per cent, of Rs. 715, namely, Rs.

178-12-0 should be refunded to him. On the 30th March, 1932, the District Munsif, for what has been described as ""statistical reasons"", struck off

his list of pending cases the application of the appellant for the sale of the second respondent''s property. The Court closed for the summer

vacation on the 11th May, 1932, until the 28th June, 1932. On the reopening day the appellant filed a fresh application for the sale of the same

property. He was compelled to do so in consequence of the District Munsif s action on the 30th March, 1932, which action was illegal. As the

result of the fresh application the property was advertised for sale by the Court on the 24th September, 1932. There were no bidders at the

auction and the District Munsif dismissed the application. This again constituted unlawful action on his part. The fact that there were no bidders on

this occasion did not prevent the appellant from asking the Court in the same proceedings to put up the property for sale at a later date. The 25th

September, 1932, was a Saturday and the Court was closed. When it reopened on Monday, the 27th September, the appellant filed a further

application for the sale of the property and on'' this application the Court directed the auction to take place on the 3rd January, 1933. At this

auction the property was sold to one Somasundara Naidu for Rs. 301, leaving a deficit of Rs. 414, On the 25th November, 1933, the appellant

applied for an order against the first respondent for the payment of this sum under the provisions of Order 21, Rule 71, which states that any

deficiency of price which may happen on a re-sale, by reason of the purchaser''s default, and all expenses attending such re-sale, shall at the

instance of either the decree-holder or the judgment-debtor, be recoverable from the defaulting purchaser.

The District Munsif dismissed the application on three grounds, namely : - (1) There had been material irregularity in the publication of the sale of

23rd February, 1932; (2) the property which was sold to Somasundara was not in law the same property as was sold to the first respondent, a

mortgage decree having been passed in the meantime; and (3) even if the property was the same there had been undue delay in filing the

application which had led to the second sale, namely, the application of the 27th September, 1932. The appellant appealed to the Court of the

Subordinate Judge of Coimbatore. The Subordinate Judge allowed the appeal. He found that the appellant had not been guilty of culpable delay

and that the property which was sold to Somasundara was the same property which was sold to the first respondent. He also held that there was

no material irregularity in the conduct of the first sale, but in any event it had caused no injury to the auction-purchaser. The first respondent then

appealed to this Court and his ,appeal was heard by Abdur Rahman, J., who allowed it on the ground that the appellant was not entitled to recover

because there had been a delay of about eleven months in filing the application which had resulted in the sale to Somasundara. The learned Judge

recognised that the delay was not due to any fault of the appellant, but nevertheless he considered that the appellant was not entitled to payment of

the balance because delay, had taken place. He agreed with the Subordinate Judge that there had been no irregularity in the publication of the first

sale and that the first respondent had suffered no injury. He also agreed that the property sold on the second occasion was identical with the

property which was sold on the first occasion.

Only three questions have been argued before us. They are these : - (1) Whether the learned Judge was right in holding that there had been

delay and that as the result of that delay the appellant has lost his remedy; (2) whether in order to recover from the first respondent the deficit the

second sale must have taken place under the same application; and (3) whether the property sold on the second occasion is identical with the

property sold on the first occasion.

It is manifest that the appellant had been diligent through-out and there is no ground for holding that there had been delay in the filing of the

application of the 27th September, 1932. The delay which took place in the second sale was due entirely to the improper action of the District

Munsif in closing for ""statistical reasons"" the first application for sale and his improper action in dismissing the second application when there were

no bids made at the auction which was fixed for the 24th September, 1932. But even if there had been a delay of eleven months this would not

justify the Court in rejecting the appellant''s application for an order directing the payment of the amount of the deficit. The learned Judge has in

effect read into the Civil Procedure Code, something which is not there and something which should not be there. When there has to be a re-sale

as the result of the default of the auction-purchaser the decree-holder has to apply for a re-sale. Order 21, Rule 87 as framed by this Court, says

that every re-sale of immovable property in default of payment of the amount mentioned in Rule 85 (the full amount of the purchase money plus the

amount required for the general stamp for a certificate under Rule 94) shall be made after the issue of a fresh proclamation. The CPC contains no

provision stating when the application for a re-sale shall be made, and therefore the decree-holder is entitled to make the application at any time

within three years as Article 181 of the Limitation Act applies. It may be thought that this period is too long in such a case, but the Court is not

concerned with that. Its duty is merely to apply the law.

The learned Judge relied on the observations of Kumaraswami Sastri, J., in Venkatachalamayya v. Nilakanta Girjee (1917) 34 M.L.J. 156 :

ILR 41 Mad. 474 where he said that:

The reasonable construction to place on Rule 71 is that the re-sale should be within a reasonable time after the first sale.

Abdur Rahman, J., rightly observed this statement can only be regarded as obiter, but he considered that the principles governing the

assessment of damages in cases of breach of contract apply here, and that the defaulting auction purchaser should not suffer for any fall in prices

which may take place after his default. I am unable to agree. Order 21, Rule 71 says that the defaulting purchaser shall be responsible for the

deficit and there is no qualification of this statement. But even if it were the case that an application for a re-sale is not governed by Article 181 of

the Limitation Act and that it is incumbent upon the decree-holder to apply for a re-sale within a reasonable time that condition has been fulfilled in

the present case. The appellant took prompt steps for the securing of an order for re-sale and, as I have pointed out, the re-sale did not take place

as early as it should have done because of the erroneous orders passed by the District Munsif, not passed in a judicial capacity but in pursuance of

an administrative practice which I trust has long been discontinued.

Mr. Rajah Aiyar on behalf of the first respondent has contended that the re-sale took place in execution proceedings different from those

originally instituted, but this argument does not call for discussion. It has been decided over and over again that an application in execution which is

necessitated by the action of the Court in striking off a previous application, for execution is not in law a fresh application, but must be taken to be

an application to revive or continue the former application. I need only mention Sasivarna Tevar v. Arulanandam Pillai (1897) 8 M.L.J. 18 : ILR

21 Mad. 261, Suppa Reddiar Vs. Avudai Ammal, , Chalavadi Kotiah v. Paloori Alamelammal (1907) 18 M.L.J. 46 : ILR 31 Mad. 71,

Sundaramma v. Abdul Khadar (1932) 64 M.L.J. 664 : ILR 56 Mad. 490 and Abdul Azim Sahib and Others Vs. Chokkan Chettiar and Another,

. The application which the appellant was compelled to file on the 28th June, 1932, by reason of the order of the 30th March, 1932, and the

application of the 27th September, 1932, which was necessitated by the order of the 24th September, 1932, are not fresh applications, but are

applications to revive or continue the application which led to the sale of the 23rd February, 1932, and therefore it must be held that the sale to

Somasundara was a sale in the original proceedings.

There is also no substance in the third contention raised on behalf of the first respondent. The property sold to Somasundara was in truth and in

fact the same property which was sold to the first respondent. In the first case the property was bought subject to a mortgage; in the second case,

the property was the same but the mortgage had been replaced by a mortgage decree. The property was the same property and what was sold

was the right, title and interest of the judgment-debtor in it.

For the reasons indicated the appeal succeeds and the appellant is entitled to his costs throughout.