V. Rajagopal Naidu vs Smt. Muthulakshmi Ammal and Others

Ramaprasada Rao, J.—The judgment-debtor-petitioner, aggrieved by the orders of the lower court who refused to set aside a sale of the

property in execution of a money decree, canvasses the legality of the same, as petitioner in this court. The petitioner''s case is that the property has

been valued by him even at the stage when it was attached before judgment at Rs. 6500. After the suit ended in a compromise decree, the

attachment having been raised, that first respondent-decree-holder reattached the property in execution. The property consists of two items (1)

garden land of an extent of 74 cents and (2) cultivable land of an extent of 58 cents with a well in it. In E.P. 632 of 1962, the property was valued

by the village munsif itemwar at Rs. 800 and Rs. 1000 each. Incidentally the second item of the property was subject to an encumbrance in favour

of the Co-operative Society from whom the judgment-debtor secured a loan to widen the well. After the property was attached in execution, the

petitioner''s case is that no notice was validly served on him under Order 21 Rule 66 C.P.C. when the sale was directed. Even in the proclamation

of sale Ex. C. 2 only the decree-holder''s valuation and the court''s valuation have been mentioned and his valuation and the encumbrance were not

included therein. It appears after knowing the sale date, he sought for an adjournment of the sale and was asked to deposit some money towards

the decree. The sale was finally held on 3-4-1963 and was knocked out in favour of the husband of the decree-holder for Rs. 501 in respect of

the first item and for Rs. 1001 in respect of the second item. The petitioner contends that as (1) there was no notice under Order 21 Rule 66

C.P.C., (2) there was no proper tom tom of such sale, (3) there was no insertion in Ex. C. 2 of his valuation and (4) the property was knocked

down for a ridiculously low price, the sale suffers from material irregularities and the petitioner is adversely affected by such a sale.

As regards the first objection that no notice under Order 21 Rule 66 C.P.C. was served on the petitioner, it has to be noted that the service in

the instant case was effected by affixture consequent upon the refusal by the judgment-debtor. Both the courts below found, as a matter of fact,

that such service was sufficient service. It must however be noted that due to the alleged refusal and consequential affixture, the courts below

imputed the judgment-debtor with constructive notice under Order 21 Rule 66 and this conclusion was arrived at on a detailed examination of the

oral evidence in the case. The main contention of the petitioner is that the attesting witnesses are not those ordinarily residing in the village in which

the property is situate. Though at first sight this argument appears to be well with force, but in revision the matter cannot be successfully canvassed

by the petitioner, because the factum of service is clearly a fact found concurrently by the courts below. The conspicuous event in this case is that if

the judgment-debtor did not have such effective notice of sale it was well within his rights to apply for setting aside the ex parte order which

accepted such service as good service. The judgment-debtor, however, did not file any such application to set aside the ex parte order. As regards

the other contention that no proper tom tom can be said to have been effected by the decree-holder at or near the place of auction, it does not

appear to me that the reasons given by the petitioner in this Court are in any way convincing to disturb the concurrent findings of fact of both the

courts below.

But the contention of the judgment-debtor that the sale proclamation was defective in that the valuation of the judgment-debtor was not

incorporated therein and such an inchoate and irregular sale proclamation cannot be the foundation of a legal and valid court or public sale, has

considerable force. The trial court does not appear to have adverted to this material circumstance. The lower appellate court, however, held that

there is nothing on record to show that the judgment-debtor gave any value for being mentioned in the sale proclamation and therefore it held that

the sale is not vitiated and not liable to be set aside. I shall presently advert to the other main contention of the petitioner that by reason of the

irregular proclamation resulting in an illegal sale, he has been considerably prejudiced in that the real market value of the property was not

incorporated in the document which has to be circulated to the public to enable them to come and bid at the sale. What is the impact of Order 21,

Rule 66 (2) (e) over a sale proclamation which is admittedly defective, in that there is a lacuna therein which relates to the absence of valuation of

the judgment-debtor?

Before the above question is answered directly, it would be necessary to find out as to what is the purpose and intendment of the CPC in

rescribing certain requirements which have to be found and publicly exhibited in a sale proclamation before any public sale is attempted. This

aspect was considered in a different light by Veeraswami J. in Ramalingam Pillai Vs. Sankara Iyer (Died) and Others, . That was a case which

arose under circumstances wherein the complaint was that the notice under Order XXI, Rule 66 C.P.C. was not served. There the learned Judge,

agreeing with Panchapakesa Aiyar J. in Kothayadath Karunakaran Nair Vs. Methalayil Chathu, held that if a proclamation is drawn up on inchoate

and illegal material, and in any event on the basis of information which was either incorrect or untrue, then the resultant sale would be a nullity and it

will not be a case of mere irregularity. No doubt, this was the ratio in the above case. But applying the same test to the particular facts of the case

before me, it appears to me that if a sale proclamation does not contain a mandatory and a statutory requirement, the mere fact that constructive

notice of sale and notice under Order XXI Rule 66 C.P.C. is imputed to the judgment-debtor by an a priori consideration of the facts, it would

nevertheless be a sale held on a proclamation which was not drawn up in accordance with law. Learned counsel for the petitioner rightly contends

that Order XXI Rule 66 (2) (e), which is a particular and peculiar amendment introduced in Madras State, has to be strictly enforced and if as a

fact there is any defect in the sale proclamation in that it does not disclose the two valuations, that is, both of the decree-holder and that of the

judgment-debtor, which are obligatorily to be described, then the proclamation suffers from, an irregularity which cannot be cured even by

acquiescence.

A Division Bench of this court in K.S. Nagendra Iyer and Another Vs. M. Varadaraja Pillai and Others, was of the view that the court has to

give, under Order XXI rule 66 (2) (e) C.P.C. the value of the property as, stated by the decree-holder and the judgment-debtor, and added;

Where this rule is not complied with and the upset price given in the proclamation is the one given by the decree-holder which on the evidence is

found to be grossly inadequate, and it reveals a clear intention on the part of the decree-holder to conceal from the intending bidders the true value

of the property and thereby, dissuade a good many of them from taking part in the sale, in such circumstances the sale is clearly vitiated and liable

to be set aside"",

In this case the judgment-debtor originally valued the property at Rs. 6000. When he attempted to substantiate before the lower appellate court

that the value as stated by the decree-holder is inadequate and considerably low, he was not allowed to do so. His application for reception of

additional evidence was summarily rejected by the lower appellate court. The lower appellate court, while refusing to receive additional evidence,

observed:

Further, even if the documents are received, they are not sufficient to rebut the evidence already on record"".

This appears to me to be a conclusion without any consideration. The value as evaluated by the judgment-debtor at the tune of the attachment

before judgment proceeding was nearly six times the value as stated by the decree-holder. Thus, the value put in the proclamation is ridiculously

low. At any rate, an opportunity was given to the judgment-debtor to establish that the decree-holder''s valuation was designedly low. The

insistence of the decree-holder to hold on to such a value which is obviously self-serving and to his ultimate advantage, savours of lack of bona

fides. Honesty is a duty of universal obligation. The fact that the value of both the items of property is depicted as low, might prejudice the minds of

buyers about the quality of the land. In the words of the Privy Council in Sadatmand Khan v. Phul Kuar, 25 Ind App 146 :

It is a mis-statement of the value of the property which is so glaring in amount that it can hardly have been made in good faith, and which,

however, it came to be made, was calculated to mislead possible bidders and to prevent them from offering adequate prices or from bidding at all.

Thus, therefore, the value as given by the decree-holder is misleading and has caused considerable prejudice to the judgment-debtor, and without

hesitation we can conclude that the sale is thus vitiated.

Mr. K. Raman appearing for the decree-holder however contends that even though the sale proclamation did not Include the price of the

judgment-debtor the sale is not vitiated for two reasons (i) the judgment-debtor did not make any attempt to give his price at the appropriate time

for the same to be mentioned in the proclamation of sale, (ii) there is a waiver of such an irregularity, even if it is one,

Regarding the first objection, the instant case is one in which the judgment-debtor was deemed to have been served, Therefore he had no real

or effective opportunity to state the valuation of the property, The inclusion of the judgment-debtor''s valuation in the proclamation is not a rule of

mere procedure, but one of substance. This is a mandatory requirement. There is therefore no force in the first contention. The second contention

which closely follows the first requires a serious consideration. This is mainly rested on the ground that the judgment-debtor applied for

postponement of the sale after he came to know of it. In this case, notice under Order XXI rule 66 was affixed and the evidence is that the

judgment-debtor refused. But the case of the judgment-debtor is that he was not present in the house on that day and the note made by the

process server that he refused summons is incorrect and he even states that it is false. But sitting in revision I am constrained to accept the finding

of fact that notice was served under Order XXI Rule 66 on the judgment-debtor. But, in my view, the circumstances are suspicious and not

beyond reasonable doubt.

It cannot with certainty be presumed that the affixture which was made by the process server in the instant case, which was attested by non-

residents of the village, could have been done, or even if it was done, whether the version given by the decree-holder through his witnesses can be

true. Suffice it, however, to say without further probing into the details of the evidence regarding such service, that though it has been held that the

judgment-debtor should be deemed to have had notice or constructive notice of such service, yet, for all just and equitable purposes, it cannot be

presumed that the judgment-debtor, at that point of time, had all the information about the defective proclamation of sale which propelled the

public sale. In the words of the Privy Council in AIR 1945 67 (Privy Council) .

The efficacy of a plea of waiver by the appellant depends on the ability of the respondent to prove that the appellant knew the true facts from

which an intention on his part to waive his right to object to a misstatement in the proclamation can be inferred"".

No such proof has been let in this case by the respondents.

There is also a duty cast on the court to send out a completed sale proclamation containing details as required in law. It has also the duty to avail

itself of all information from the records in court. In the attachment before judgment proceedings, the judgment-debtor has valued the property at

Rs. 7000, This material was thus available. But the court has not adverted to such material information On its records and failed to discharge one

of its statutory duties and thus failed to exercise its jurisdiction vested in it by law.

Learned counsel for the respondents strenuously stressed the plea of waiver by the judgment debtor to contend that the sale cannot be set aside.

As already stated, the application for postponement of sale is pressed into service in support of this contention. No doubt certain observations of

the Privy Council in Girdhari Singh v. Hurdeo Narain Singh, (1876) 3 Ind App 230 and in Arunachelam v. Arunachelam, I.L.R.(1888) Mad 19

were relied upon. Mr. K. Mohan appearing for the petitioner equally relied upon two other Privy Council decisions reported in AIR 1938 230

(Privy Council) and AIR 1945 67 (Privy Council) . I have already adverted to the decision reported in AIR 1945 67 (Privy Council) . In this case

the two other decisions cited by the learned counsel for the respondents are referred to but yet the learned Law Lords laid down in no uncertain

terms the rule that waiver can only be sustained, if the party against whom it is projected did have full knowledge of all the material facts put against

him. This is not so in this case as the judgment, debtor was not personally served with the notice under Order XXI rule 66. There is no clinching

evidence to show that the petitioner knew the true facts, to wit the absence of his valuation in the proclamation, from which a deliberate intention

on his part to waive, his right to object to a misstatement in the proclamation can be fairly, legitimately and properly inferred. It is only such a state

of affairs that could constitute, waiver, as estoppel must be certain to every intent and not to be taken by argument or inference. To the same effect

are the observations of the Privy Council in AIR 1938 230 (Privy Council) :

There is a distinction in law between waiver and admission; in the case of waiver a person is not to be held to have waived a right of which he was

reasonably ignorant, but in the case of a representation or admission which is acted, on the party making it cannot plead ignorance unless it is

induced by the other party, for, if he does not choose to enquire beforehand, he takes the risk of error"".

The case cited by Mr. K. Raman, Vaidyalinga Pillai v. Chidambara Filial, ILR 1967 Mad 140 has no application to the facts of this case. There

the judgment debtor stood by and allowed the sale to go on and Kailasam, J., held that he cannot be heard to set up a plea of misdescription in the

sale proclamation. The other case cited by the learned counsel for the respondents, Potta Reddi Vs. Karuppa Goundan and Others, is yet again

one in which the judgment-debtor in spite of notice took no part in the setting of the proclamation and thereafter applied for adjournment of the

sale. In those circumstances, Walsh, J. held that he is estopped from filing an application for setting aside such a sale.

In such instant case, the notice was not directly served. The court did not perform its duty to avail itself of the available material on record to

complete the proclamation in all respects. The judgment debtor cannot be said to have had all information regarding the defective sale proclamation

when he applied for adjournment. The application for adjournment is obviously made in an emergency to avert a sale and highly involuntary rather

than a free act in exercise of one''s volition being conscious of all the defects with which the proclamation was suffering.

I am satisfied that in this case the petitioner is not estopped from raising the plea that the proclamation is defective and thus there was a serious

irregularity which goes to the root of the court sale. I have already found that the conduct of the decree holder coupled with the fact that the

judgment debtor was not given a fair opportunity to prove the market value raises a considerable doubt whether the price paid is adequate.

In fact, by reason of the law and inadequate price the judgment debtor has been damnified considerably. This is a fit case in which the sale has to

be set aside and accordingly it is set aside. The order of the lower court is consequently set aside and this civil revision petition is allowed. There

will be no order as to costs.