Seetharama Iyengar vs Veeraraghava Pillai and Another

K.S. Venkataraman, J.—This appeal filed by the judgement debtor arises out of an application , E.A.No. 440 of 1965, which he filed under

Order 21 , Rule 90, CPC , to set aside a sale on the ground of alleged irregularity and illegality. The properties are wet lands in Chidambaram

Taluk of an extent of 2 acres 63 cents, but they were subject to a mortgage of Rs. 19,500. Some other properties 2 acres 63 cents, were included

in the mortgage, though we do no have any precise estimate of the relative values of those properties and the lands in question.

The last property was put up for sale on three successive occasions and was only on the last occasions they were sold for Rs. 795 subject to

the encumbrance Rs. 19,500. This therefore works out to the sale price of about Rs. 75 per cent., the encumbrance of judgment-debtor''s

contention is that the lands would be worthy''s Rs. 100 per cent and therefore even subject to the mortgage, the lands should have fetched the

price of nearly Rs. 7,000, and that is how he pleads prejudice. Actually, his grievance price of that though initially his valuation of Rs. 100 a cent

was mentioned in the sale proclamation as required by Order 21, Rule 66 (2) (c) that was not repeated in the subsequent proclamations, and in

particular in the proclamation which resulted in the impugned sale held on 22nd February, 1965. His further grievance is that he was not given any

notice when the upset price was successively reduced from Rs. 10 per cent (subject to the encumbrance) to Rs. 7 on the last occasion. Yet

another grievance of his is that the Court should not hive simply mentioned the lands in question and other properties were subject to an

encumbrance the lands but should have further apportioned the approximate liability of the 2 acres 63 cents, and that if that had been done, the

properties might have fetched a higher value.

The contentions were overruled by the executing Court an appeal by the learned Subordinate Judge and hence this further appeal by the

judgement-debtor.

The Courts below have expressed the opinion that under Order 21 Rule 66(2)(c), Civil Procedure Code, it is not necessary that the judgment-

debtor''s valuation should be mentioned in each of the successive proclamations of sale. They think that it was sufficient that it was mentioned in the

first proclamation of sale. I think however that on the wording of Order 21, Rule 66 (2) (c) Civil Procedure Code, each sale proclamation should

have mentioned the value of the property as stated by the judgment-debtor. But I am unable to find that the judgment-debtor has sustained

substantial injury as a result of this irregularity, and hence under the third proviso to Order 21, Rule 90, Civil Procedure Code, I am precluded

from setting aside the sale on the ground of this irregularity. The crux of the matter is that mentioning the judgment-debtor''s valuation as Rs. 100

per cent would not have really improved matters when we find that it was mentioned in the first proclamation and there were no bidders on the

prior occasions when the upset price was Rs. 10, 7 or 5. I agree with the learned Subordinate Judge that the Court was not obliged to give a

notice specifically to the judgment-debtor on each of the occasions when the upset price was reduced and that since as a matter of practice the

execution petition was adjourned to particular dates and the reduction of the upset price was effected only on those adjourned dates, it was the

duty of the judgment-debtor to be present and acquaint himself with what happened.

The last point is whether the Court should have apportioned the approximate liability of the 2 acres 63 cents in respect of the mortgage amount.

Here, it does not appear that the judgment-debtor furnished any particulars to enable the Court to do so, and he does not appear to have made

any request to the Court that that should be done. When he himself did not move in the matter, it was not incumbent on the executing Court to

undertake this task. Even before me, the learned Counsel for the appellant is not able to furnish information about the relative liability of the 2 acres

63 cents and the other properties subject to the encumbrance.

It follows that this appeal has got to be dismissed. The learned Counsel for the appellant, however, prays that I may make a declaration that

since the 2 acres 63 cents have been sold subject to the encumbrance of Rs. 19,500, the encumbrance has been discharged in full and that the

mortgagee will not be entitled to proceed against the other encumbered properties. The mortgagee is absent and though prima facie it looks as

though the learned Counsel is correct in his submission that the entire mortgage has been discharged as a result of the sale of these 2 acres 63

cents, it is not advisable for me to say anything further in the absence of the mortgagee ; nor is it advisable to say anything further about the

contribution which the auction-purchaser may seek to levy against the other properties included in the mortgage.

The appeal is accordingly dismissed, but without costs. No leave.