Madras High Court
Vilja vs Padmaja on 1 March, 2024
C.M.S.A.(MD).No.22 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.03.2024
CORAM:
THE HONOURABLE MR.JUSTICE P.DHANABAL
C.M.S.A.(MD)No.22 of 2012
and
M.P(MD) No.1 of 2012
Vilja ... Appellant/Appellant/
Petitioner/3rd Party
-vs-
1. Padmaja
2. Jebaraj
3. Siril Sunder Raj ... Respondents/Respondents/
Decree Holder/Judgment Debtor/
Auction Purchaser
PRAYER: Civil Miscellaneous Second Appeal filed under Order 21 Rule 90
r/w Section 100 of C.P.C, against the order and decreetal order passed in
C.M.A.No.16 of 2007 on the file of the Subordinate Judge,
Padmanabhapuram, dated 16.02.2012 confirming the order passed in E.A.No.
43 of 2004 in E.P.No.49 of 2004 on the file of the Principal District Munsif-
cum-Judicial Magistrate, Eraniel, dated 19.12.2006.
For Appellant : Mr.C.K.M. Appaji
1/13
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C.M.S.A.(MD).No.22 of 2012
For Respondents : Mr.H.Thayumanasamy
for M/s.Issac Chamber – for R1
: Mr.R.Subbaraj – for R3
: for R2- dismissed
JUDGMENT
This Civil Miscellaneous Second Appeal has been filed by the
appellant as against the order passed in C.M.A.No.16 of 2007 on the file of
the Subordinate Judge, Padmanabhapuram, dated 16.02.2012, wherein the
first appellate Court has dismissed the appeal as against the order passed in
E.A.No.43 of 2004 in E.P.No.49 of 2004 on the file of the Principal District
Munsif-cum-Judicial Magistrate, Eraniel, dated 19.12.2006. The appellant
herein has filed the appeal under Order 21 Rule 90 of C.P.C to set aside the
same.
2. The brief facts of the case are as follows:
The appellant/petitioner is a third party in the Execution Petition. In the
said case, final decree was passed on 29.08.2002 and the property was
brought for sale through Execution Petition and the sale was conducted on
24.09.2003. The property was brought on sale by playing fraud, on the Court
in bringing the schedule of property abruptly and without undergoing all the
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formalities. There are material irregularities on the sale proceedings. The
appellant filed a suit in O.S.No.185 of 2001 against the judgment debtor and
obtained a decree dated 11.08.2003 for recovery of a sum of Rs.1,11,972/-
and also filed a petition in I.A.No.708 of 2001 for attachment and the same
was also ordered on 30.10.2001. Therefore, the appellant/petitioner has
charge over the property. While so, in this proceedings, the sale has been held
within 30 days against the mandatory provision under Order 21 Rule 90 of
C.P.C. The time for sale has not been fixed. The decree holder and the
judgment debtor colluded and brought the property for auction. The value of
the property is more than Rs.3 Lakhs. But the sale property was undervalued
to Rs.1,25,000/-. Therefore, the sale deed dated 24.09.2003 is vitiated by
fraud and collusion and suffers with material irregularities. Therefore, the sale
held on 24.09.2003 is to be set aside.
3. The brief averments in the counter filed by the first respondent are as
follows:
The averments made in the petition all are denied as false. The first
respondent is the plaintiff and the decree holder in the suit. The first
respondent/Plaintiff has an earlier charge over the schedule property. There is
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no fraud or collusion involved in the petition. Therefore, the petition is liable
to be dismissed.
4. The gist of the counter filed by the third respondent is as follows:
The third respondent denied various allegations raised in the affidavit
filed in support of the petition. The third respondent participated in the
auction proceedings in view of the application made by the Court and he is
the highest bidder of that auction and he has already deposited the entire
amount of the sale price. The third respondent is the bonafide auction
purchaser and there is no fraud or collusion involved in this case. Hence, the
petition is liable to be dismissed.
5. Before the Execution Court, on the side of the petitioner, no witness
was examined and only documents Ex.P1 and Ex.P.2 were marked. On the
side of the respondent, no witness was examined and no documents were
marked.
6. The Execution Court, after hearing both sides, dismissed the petition.
While holding the auction of the property, the Court also accepted the value
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of the property and the petitioner has not filed any material to show the value
of the property and there is no collusion has brought to the notice of this
Court by the petitioner and dismissed the petition. As against the fair and
decreetal order, the appellant has filed first appeal before the Sub Court,
Padmanabhapuram in C.M.A.No.16 of 2007 and the same was also dismissed
by the first appellate Court by confirming the order passed by the Execution
Court. As against the order passed by the first appellate Court, the present
appeal has been preferred by the appellant on various grounds.
7. The learned counsel appearing for the appellant would contend that
the appellant already filed a suit in O.S.No.185 of 2001 and obtained money
decree for a sum of Rs.1,11,972/-. She also filed a petition for attachment of
property and the same was allowed and the property was also attached. In the
meantime, in the present case, the first respondent has obtained decree and to
realize the decree amount brought the property for sale and the third
respondent has participated in the auction proceedings and the procedures
have not been followed under Order 21 Rule 90 of C.P.C and the sale price
was not properly fixed and the property was undervalued. The trial Court has
failed to consider the attachment before the judgment and the first Appellate
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Court also, without considering all the aspects, erroneously dismissed the
appeal by confirming the judgment of the trial Court. Therefore, the order
passed by the Execution Court as well as the First Appellate Court are liable
to be set aside by allowing this appeal.
8. The learned counsel appearing for the first respondent would
contend that she already filed a main suit and the same was decreed in her
favour and thereafter, she brought the property for sale and property was also
sold through Court auction. The third respondent is the successful bidder for
higher value and the Court only fixed the value of the property. After
following all the formalities by adopting the procedures only, the sale was
conducted and this Court also confirmed the sale proceedings. The mortgage
in the name of 1st respondent is prior to the date of attachment in the suit filed
by the appellant. Therefore, the first respondent is the secured creditor and
thereby, there is no irregularities in conducting the auction and sale
proceedings. The Execution Court, after careful perusal of the entire material,
correctly dismissed the petition and the first appellate Court has also after
analyzing the evidence correctly dismissed the appeal by confirming the order
of the trial Court. Therefore, there is no sufficient ground to allow this appeal
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and the appellant has not pleaded the substantial question of law and no
substantial question of law is involved in this case. Hence, this appeal is
liable to be dismissed.
9. The learned counsel appearing for the third respondent would
contend that he is the bonafide purchaser for valuable consideration and he
participated in the sale conducted by the Court and through Court auction he
purchased the property for valuable consideration and paid entire sale price.
The Sale Certificate was also issued in his favour. Therefore, the present
appeal is liable to be dismissed.
10. This Court, after hearing learned counsel appearing on either side
and perusing the documents including the order of the Court below, frames
the following point for determination in this appeal:
“ i. Whether any substantial question of law is
involved in this case or not?”
11. In this case, according to the appellant, she has already filed a suit
in O.S.No.185 of 2001 against the judgment debtor and obtained a decree
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dated 11.08.2003 for recovery of money for a sum of Rs.1,11,972/- and also
filed a petition in I.A.No.708 of 2001 for attachment of property and the same
was also ordered on 30.10.2001. Thereafter, the first respondent colluding
with the second respondent brought the property for auction through Court
and the third respondent has participated in the sale through Court auction
and obtained the property through Court auction. There are material
irregularities in the Court auction. The date and sale price were not mentioned
in the Ameen report. The value of the property is more than Rs.3 Lakhs. But
the sale property was undervalued to Rs.1,25,000/-. The sale has been held
within 30 days against the mandatory provision. The 2nd property was already
mortgaged with the first respondent prior to the attachment of the petitioner
and the property was also brought for sale through Court auction after decree
by following procedure. The petitioner also admitted the sale of the property
and the attachment is after the mortgage in favour of the first respondent. The
main contention of the appellant is that the procedure has not been followed
and thereby, the sale is vitiated. The main procedure alleged to have not been
followed is the time limit of 30 days and value of the property is mentioned as
Rs.1,25,000/-. But the real value more than Rs.3 Lakhs.
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12. The learned counsel appearing for the appellant has relied upon the
judgment of the Hon'ble High Court in the case of (D.V.Raghavan vs.A.J.
Suresh Kumar and another) reported in 2000 (II) CTC 13. On a careful
perusal of the above said judgment, it is clear that the order of attachment
before judgment would effect from the date on which it was passed as against
the transferee without consideration and not from date of knowledge of such
order. in this case, the attachment was subsequent to the mortgage of the
property. Further, the learned counsel appearing for the appellant also relied
the judgment in Chinnammal and others Vs.P.Arumugham and another
(1990) 1Supreme Court Cases 513. On careful perusal of the judgment it will
not be applicable to the present facts of the case, because in this case, there is
no any irregularities or fraud in the sale proceedings before the Execution
Court.
13. At this juncture, it is appropriate to refer the provision of Order 21
Rule 90 of C.P.C, which reads as follows:
“ 90. Application to set aside sale on ground of
irregularity or fraud.
(1) Where any immovable property has been
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sold in execution of a decree, the decree holder, or
the purchaser, or any other person entitled to share in
a rateable distribution of assets, or whose interests
are affected by the sale, may apply to the court to set
aside the sale on the ground of a material
irregularity or fraud in publishing or conducting it.
(2) No sale shall be set aside on the ground of
irregularity or fraud in publishing or conducting it
unless, upon the facts proved, the Court is satisfied
that the applicant has sustained substantial injury by
reason of such irregularity or fraud.
(3) No application to set aside a sale under this
rule shall be entertained upon any ground which the
applicant could have taken on or before the date on
which the proclamation of sale was drawn up.”
14. Even as per the order XX1 Rule 90 (2) of C.P.C, No sale shall be
set aside on the ground of irregularity or fraud in publishing or conducting it
unless, upon the facts proved, the Court is satisfied that the applicant has
sustained substantial injury by reason of such irregularity or fraud. Therefore,
from the said provision it is clear that the applicant has to prove the
irregularity and the Court has to satisfy that the applicant has sustained
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substantial injury by reasons of such irregularity or fraud, but in the case on
hand, the appellant has not proved the irregularity and not satisfied this Court
that the sustained substantial injury by reason of such irregularity.
15. In this context, it is relevant to mention that the petitioner has not
examined any witnesses and not filed any documents to support of his
contention and only filed decree and the order passed in Attachment before
Judgment. Apart from that, no other documents were filed by the petitioner
and the Execution Court also, after filing this application, confirmed the sale.
The same was also not challenged by the petitioner. The Execution Court,
after elaborate discussion, held that the petitioner has not filed any documents
to prove the value of the property and there are no irregularities proved by the
petitioner and correctly dismissed the petition. The first appellate Court also
after elaborate discussion, confirmed the order of the Execution Court.
Therefore, there is no infirmity or perversity found in the order of the Courts
below and there is no substantial question of law involved in this matter and
thereby, this appeal has no merit and it deserves to be dismissed.
16. Accordingly, this Civil Miscellaneous Second Appeal is dismissed
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by confirming the order passed in C.M.A.No.16 of 2007 on the file of the
Subordinate Judge, Padmanabhapuram, dated 16.02.2012 in E.A.No.43 of
2004 in E.P.No.49 of 2004 on the file of the Principal District Munsif-cum-
Judicial Magistrate, Eraniel. There shall be no order as to costs.
Consequently, connected Miscellaneous Petition is closed.
01.03.2024
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
To
1. The Subordinate Judge,
Padmanabhapuram.
2. The Principal District Munsif-cum-Judicial Magistrate,
Eraniel.
3. The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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P.DHANABAL,J.
ebsi
01.03.2024
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