P.C. Kandaswami Pillai and Others vs Narayana Aiyar

This is an appeal by defendants Nos. 1 to 4 against an order of the learned Subordinate Judge refusing to set aside a sale held in execution of

the decree in O.S. No. 20 of 1928. Various objections were raised against the validity of the sale and an enquiry was held under Order XXI, Rule

90, Civil Procedure Code. The alleged material irregularities are set forth in the order of the lower Court. The first point worthy of consideration in

this appeal is, whether the proclamation of sale in pursuance of which the properties were sold in Court auction on February 4, 1930, is defective

in the sense that the sale held on the strength of such proclamation should be deemed to be invalid. The facts of this case are, that a large number

of items put up for sale were the subject of a suit for partition between the 1st defendant and his elder brother (O.S. No. 82 of 1925). Those

properties are said to be the estate of their father who became divided and died as a separate owner. In those properties each of the two brothers

owned a half share. By the time the proclamation in question was settled, the final decree in the aforesaid partition suit had not been passed. The

particular items to be allotted to the share of each brother were not ascertained. In such a state of circumstances, the only way in which the right,

title and interest of the 1st defendant in those properties could be described is by stating that he has an undivided half share in items Nos. 11 to 61

and making reference to the preliminary decree for partition passed in O.S. No. 82 of 1925 on the file of the Subordinate Judge''s Court, Calicut.

It is said that the final decree in that partition suit was passed on October 14, 1929. The argument advanced on behalf of the appellants is, that

subsequent to the passing of that final decree the present decree-holder should have got the sale proclamation amended by mentioning the specific

items which fell to the share of the present 1st defendant, according to that final decree, and should have got a fresh proclamation issued in that

form before bringing the properties to sale. It must be noted that the present decree-holder was no party to the aforesaid partition suit. That decree

was within the knowledge of the present 1st defendant. It was perfectly open to him to move the executing Court to have the sale proclamation

amended and published once again before the Court sale. He did nothing of the kind. The Court is not expected to know that such a final decree

was passed and to have the sale proclamation amended by any order passed of its own accord. Moreover, in the present case, we find that at the

request of the defendants themselves the sale was adjourned more than once and in order to get the sale adjourned for more than a week the

judgment-debtors waived their right to a fresh proclamation. On the strength of such a waiver, the Court adjourned the sale in order to suit the

convenience of the defendants. When the original sale proclamation was perfectly correct and in due form, if that proclamation was not amended

as now urged by the appellants, the fault is theirs and not the decree-holders. Reference was made to a decision in Someshwar v. Manital 137 Ind.

Cas. 603 : AIR 1932 Bom. 210 : 31 Bom. L.R. 206 : Ind. Rul. (1932) Bom. 306 given by a Single Judge. The facts of that case are entirely

different. We find that as an objection to the attachment itself it was stated to the Court that the attachment in that form was not valid, but the

attachment should be confined to the specific items that had fallen to the share of the judgment-debtors in another partition suit. In spite of such an

objection, the Court refused to recognise the events that occurred in the partition suit and upheld the attachment in the form in which it was

originally effected. In the present case, no such application was made to the Court before the sale in question, by the present defendants who alone

ought to have made such a request. There is therefore no substance in the contention that the sale proclamation was defective.

Another point pressed for acceptance is, that the waiver of the right to a fresh proclamation made by the 1st defendant on his behalf and on

behalf of his minor sons amounts to an agreement within the meaning of Order XXXII, Rule 7, CPC and is invalid, as it was made without the

leave of the Court. In the first place, we have to point out that that rule expressly refers to any agreement or compromise on behalf of a minor with

reference to the suit which is entered into by the guardian with any other party in the suit. When the application for an adjournment of the sale for

two months was made under Order XXI, Rule 69, CPC it was the Court that should in the exercise of its discretion grant or refuse such prayer.

Clause 2 of this rule is to the effect, that where a sale is adjourned for a longer period than seven days a fresh proclamation shall be made, unless

the judgment-debtor consents to waive it, If for the purpose of getting the sale adjourned for a longer period than one week the guardian for the

minors consents to waive the right to a fresh proclamation, where is the question of any agreement between him and some other party to the suit?

Presumably, the adjournment of the sale in that manner was asked for in the interests of the minors. If for such a purpose a guardian should consent

to waive the right to a fresh proclamation, it-must be taken that he did so for the purpose of getting the required adjournment of the sale. Rule 7 of

Order XXXII has therefore no application whatever to this case of waiver. This objection also is, in our opinion, futile.

Of the other objections, we may note two. The first is that the amount of the encumbrance noted in the sale proclamation has not been

calculated and the result of such calculation mentioned. This would be expecting too much from the decree-holder. All that is necessary is, that

such information as, the Court considers material for a purchaser to know in order to judge of the nature and value of the property has to be given.

There are no hard and fast rules for this. In the present case, the years of the mortgage bonds, the amounts of the principal covered by those

bonds, their numbers in the registration office and also the fact that these amounts carry interest and compound interest as per stipulations in the

bond have all been noted. Any man of ordinary prudence could easily conjecture the probable amount of these encumbrances and that is fairly

adequate information which would serve a useful purpose. It may be that even if a mechanical calculation of interest is made and the amount set

forth therein, there is the risk of such an amount being found to be incorrect. Part payments of interest may have been made and even if the decree-

holder chooses to give his own estimate of the probable amount due, its correctness may be open to question by the mortgagors or the mortgagee.

So it cannot be reasonably contended that the information as to the encumbrances given in the sale proclamation is in any way inadequate. In the

case reported in Lackersteen v. Rosten 7 C 32 at p. 34. relied on by the appellants'' learned Advocate, all that was noted in the sale proclamation

was the existence of a mortgage without any further particulars. Such is not the case here. The second objection is that the upset price which was

fixed at Rs. 2,000 was too low. It must be noted that that upset price refers only to the equity of redemption, the properties themselves being

heavily encumbered. We have the significant fact that though the upset price was fixed at Rs. 2,000 the price actually fetched at the sale was Rs.

6,000. That being so, can it be said that the lowness of the upset price, even assuming this to be so, was in any way contributory to the misleading

of the bidders in guessing the real value? Beyond the ipse dixit of the 1st defendant himself who says that the gross value of the properties would

be two lakhs, there is no evidence to corroborate the objection that the price fetched at the Court-sale is grossly inadequate.

The defendants have failed to prove any material irregularities and much less substantial injury as the result of the material irregularities. We

therefore think that the order of the lower Court is correct and dismiss this appeal with costs.