K. L. Prakash (Prakashan Pillai) v. The South Indian Bank, Alappuzha Branch and Rahim

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY ,THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941** ## **CRP.No. 384 of 2010** **AGAINST THE ORDER/JUDGMENT IN CMA 27/2009 of ADDITIONAL DISTRICT COURT, ALAPPUZHA DATED 03-07-2010,** **FILED AGAINST THE ORDER/JUDGMENT IN EA NO.193/2006 IN EP NO.337/01 IN OS 841/1998 of PRINCIPAL MUNSIFF'S COURT, ALAPPUZHA** ## **REVISION PETITIONER/APPELLANT/APPLICANT/JUDGMENT DEBTOR:** **K.L.PRAKASH (PRAKASHAN PILLAI) AGED 77 YEARS, S/O. LATE LONAN PILLAI, PROPRIETOR, RANI CINEMA, KURISHINKAL (BANK) VEEDU, OMANAPUZHA, CHETTIKADU.** **BY ADV. SRI.K.S.HARIHARAPUTHRAN** ## **RESPONDENT/RESPONDENTS/RESPONDENTS/DECREE HOLDER & AUCTION PURCHASER:** **1 THE SOUTH INDIAN BANK, ALAPPUZHA BRANCH, REPRESENTED BY ITS MANAGER, PIN - 688 001.** **2 RAHIM, PUTHIYAVEETTIL, KARYAVATTOM P.O., PALAPPATT, THRISSUR - 680 501.** **BY ADVS.** **SRI.K.K.JOHN, SC, SOUTH INDIAN BANK LTD. SRI.K.V.SADANANDA PRABHU FOR R2** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15.01.2019, THE COURT ON 25.03.2019 PASSED THE FOLLOWING:** CRP 384/2010 -2- ## **ASHOK MENON, J.** ---------------------------------C.R.P. No. 384 of 2010 ----------------------------------Dated this the 25[th] day of March, 2019 ## **O R D E R** The judgment debtor in E.P.No.337/2001 in O.S.No.841/1998 on the file of the Munsiff's Court, Alappuzha, is the revision petitioner, who is aggrieved by the order of the Munsiff in E.A.No. 193/2008, confirmed in C.M.A.No.27/2009 by the Additional District Court, Alappuzha. **==> picture [353 x 12] intentionally omitted <==** application that was filed by the judgment debtor for setting aside the sale of the decree scheduled property, having an extent of 1.39 acres of garden land on 13.02.2006, worth Rs.45 lakhs for a meager amount of Rs.65,162/-. It is contended that even three cents of land from out of that property would have been sufficient to satisfy the entire decree debt and that the price fetched in the auction is too low and the courts below failed to CRP 384/2010 -3- consider the vital facts rendering the same void. It is pointed out that though the proclamation was settled on 25.07.2005 the sale was conducted only on 13.02.2006. Without a fresh proclamation and unmindful of the facts that the judgment debtor never consented waiver of fresh proclamation under Order XXI Rule 69 CPC. Therefore, for that reason alone, the sale ought to have been set aside. E.A.No.193/2006 filed by the revision petitioner under Order XXI, Rule 90 of the CPC. for setting aside should have been allowed, but the same was dismissed by the concurrent finding of the Execution Court, as well as the appellate court and hence, this revision. 3. I heard the learned counsel for the revision petitioner and the respondents. Documents perused. 4. The 1[st] respondent is the decree holder, while the 2[nd] petitioner is the person, who as the highest bidder in the auction, purchased CRP 384/2010 -4- the judgment debtor's property. From the records, it is seen that the terms of proclamation was settled on 25.06.2005, while the sale was conducted on 13.02.2006, which, according to the petitioner is beyond the period of 30 days, without any fresh proclamation. The judgment debtor would contend that he did not consent or waive the need for a fresh proclamation. Therefore, it is a material irregularity, which vitiates the sale. This is what this Court has to examine in this Revision. There is no doubt that settlement of terms of proclamation was made on 25.06.2005. The upset price was fixed as Rs.50,000/-. The respondents would contend that after fixing the upset price, the matter was adjourned for proclamation and sale on 25.07.2005, which is within 30 days. But it was adjourned for taking steps for proclamation, which was ultimately held on 21.01.2006 and the sale, which was held on 13.02.2006, was within the CRP 384/2010 -5- statutory period of 30 days from the date of proclamation. 5. The records would show that proclamation was held by beat of drums, and tom tom charges of Rs.50/- was paid, copy of the order was also affixed on the decree schedule property, and at the Village Office, Grama Panchayat Office and Court House as well. What Order XXI Rule 69 CPC. states is that when the sale is adjourned for a longer period than 30 days, fresh proclamation is required. The main contention of the revision petitioner is that the case was posted on 21.06.2006 for proclamation of sale. But there was no sitting of the Court on that date. Does the settlement of proclamation of sale required a sitting of the Court is also a point arising for consideration in this matter. The argument of the learned counsel for the petitioner is that in view of the fact that there was no sitting, there could never have any proclamation for the sale to be CRP 384/2010 -6- conducted ultimately on 13.02.2006. 6. It is pointed out by the learned counsel appearing for the respondents that the petitioner has never raised an objection to either the price, nor did he request that sale of part of the property would suffice to satisfy the decree debt, and therefore, only that much extent of land need be put for sale as is required for the satisfaction of the decree. No serious objection is also seen raised regarding the upset price that is fixed. 7. The learned Counsel for the revision petitioner relies on the decision of the Hon'ble Supreme Court in _**(2005) 10 SCC 235 [S.Mariyappa (Dead) by LRs. & others v. Sidappa & another]**_ , in support of his contention that it was incumbent upon the executing court to have gone through the fact whether the sale of the part of the property would be sufficient to meet the decree debt. In the above cited decision, the Hon'ble Supreme CRP 384/2010 -7- Court has observed that the Executing Court had at no stage considered whether the sale of only a part of the property would be sufficient to meet the decree debt. Relying on an earlier decision in _**(1994) 1 SCC 131 [Desh Bandhu Gupta v. N.L.Anand]**_ , the Hon'ble Supreme Court stated that an agricultural land of one acre was sold out for a paltry sum of Rs.1,500/- plus a prior mortgage debt of Rs.7,000/- while the decreetal amount was Rs.8,000/-. The executing court should have considered whether the sale of only a part of the property is sufficient to meet the decree debt. 8. Regarding the objection raised by the respondents that the judgment debtor did not raise any objection regarding the proclamation for sale, the learned counsel for the revision petitioner relies on _**1998 (2) KLT 88 [Gnan Das v. Paulin Moraes]**_ , wherein the Division Bench of this Court held that even if the judgment debtor failed to raise contentions before the proclamation of sale CRP 384/2010 -8- was drawn up, the executing court has to address itself to the question as to whether one item of property would satisfy the decree amount and that the executing court has got a statutory duty to address itself on that question, when two or more properties are included in the proclamation of sale. It is observed that if the property, which is sought to be sold, is considerably large comparing to the decree amount, the executing court has to consider the question as to whether by sale of a portion of the land, the decree would be satisfied. It is concluded that non-discharge of its statutory duty by the court renders the entire proceedings illegal and without jurisdiction. It is a mere irregularity, but a matter which goes beyond the jurisdiction of the Court. In support of his argument, the learned counsel relies on the Division Bench decision of this Court in _**2016 (2) KLT SN 67 (C.No.77) [Babu John v. Ramakrishnan]**_ , wherein it is held as thus: CRP 384/2010 -9- _“The Court below seems to have given undue importance to the failure of the judgment debtor to object to the proceedings for settlement of proclamation and also his conduct in protracting the proceedings. In our view, even if these facts are correct, that would neither absolve the execution court of its duties under Order XXI, C.P.C. nor does it disentitle the judgment debtor from contending that he lost his property in an auction sale held in flagrant violation of the mandatory requirements and safeguards.”_ ## 9. In _**2014 (4) KLJ 30 [M.D.Augusthy v.**_ _**The Catholic Syrian Bank Ltd.]**_ , it is held that the execution court has to first decide whether the entire attached property has to be sold, or the sale of a portion of the property would be sufficient to satisfy the decree. Even when the property is one parcel of land, if a portion could be sold without violating any provision of law and if the sale of that portion would be sufficient, only such portion of the property should be ordered to be sold. It is also held that this is not just a discretion, but an obligation imposed CRP 384/2010 -10- on the court. This Court has again in _**2009 (3) ILR 763 (Ker) [Chandradas K.P. v. Nizar A. & others],**_ held that the execution court has a duty to see that relevant particulars about the property are incorporated in the sale proclamation, that court auction sale is conducted in such a manner as to fetch maximum price for the property and that only such portion of property sufficient to satisfy the decree debt is put in sale. If there is lack of application of mind on part of the court in ensuring the above criterion, the sale can be set aside. In a very recent decision in _**2018 (2) KLT 647 [Thampi v. Sivan],**_ it is held that when upset price fixed by execution court _prima facie_ discloses that sale of the part of the property would be sufficient to satisfy the decree, it can be held that the execution court has not considered the scope of Rules 66 and 64 of Order XXI, CPC. 10. The learned counsel for the revision CRP 384/2010 -11- petitioner also relies on the Division Bench decision of this Court in _**2008(1) KLT 604**_ _**[Kuruvilla v. Corporation Bank]**_ to argue that the execution court should apply its mind and decide whether it is necessary to bring the whole property to sale or whether it is sufficient to bring only a portion of the property to satisfy the decree. The learned counsel for the revision petitioner also relies on the aforecited decision to argue that the contention of the decree holder that the judgment debtor is protracting the proceedings by filing application to set aside the same, will not lie if the sale is held in flagrant violation of mandatory procedural requirements and safeguards. 11. The learned counsel also relies on the decision of this Court in _**2006 (2) KLT 595 [Gopalaswamy Kounder v. Ramaswamy Kounder]**_ to argue that in all execution proceedings, the court has to first decide whether it is necessary to CRP 384/2010 -12- bring the whole of the attached property to sale or whether such portion thereof as may be necessary to satisfy the decree, would alone be sufficient. The choice regarding specificity of the property to be sold is not one within the pure discretion of the court, but is an obligation imposed on the court. Care must, therefore, be taken to put up only such portion of the property for sale as would meet the claim made in the execution petition. The court also held that without considering this aspect of the matter will not be one in conformity with the requirement of law and would be considered as illegal and without jurisdiction. **==> picture [353 x 12] intentionally omitted <==** revision petitioner to get the sale set aside is that the deposit is not made in time. In support of his argument, he relies on the decision of the Honourable Supreme Court in _**AIR 1997 SC 1812 [Gangabai Gopaldas Mohata v. Fulchand and Others]**_ , CRP 384/2010 -13- wherein the deposit of sale price within the stipulated time was considered and it was held as thus: “15.Rules relating to Court sale provided in Order 21, Rules 84 and 85 are analogous. They require the purchaser to make deposit of 1/4[th] of the purchase money immediately after sale and the balance shall be deposited within 15 days. This Court held in Manilal Mohanlal Shah v. Sardar Sayed Ahmed Sayed Mahamad, 1966(1)SCR 108 : (AIR 1954 SC 349), that non-compliance with Rules 84 and 85 of Order 21 would render the sale void in the eye of law. The contention in the said case, that non-compliance with the aforesaid rule only render the sale irregular, was repelled by this Court. The same principle would apply to the sale regulations contained in the above quoted Maharashtra Rules.” Order XXI Rule 84 CPC states that on every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of 25%, on the amount of his purchase money to the officer or other person conducting the sale, and in default of such CRP 384/2010 -14- deposit, the property shall forthwith be re-sold. Order XXI Rule 85 CPC states that the full amount of purchase money payable shall be paid by the purchaser into the court before the court closes on the fifteenth day from the sale of the property. According to the learned counsel for the revision petitioner, the auction purchaser in the instant case, failed to deposit the balance amount within the stipulated period of 15 days. In the instant case, the sale took place on 13.02.2006. There is no dispute regarding the payment of ¼[th] of the amount on time. But, it is stated that the balance ¾[th] of the amount was paid only on 28.02.2006, which according to the revision petitioner, is the 16[th] day. **==> picture [352 x 10] intentionally omitted <==** respondent-decree holder would contend that there is absolutely no evidence to show that the property would fetch a higher price than the price on which it was sold before. The upset price was CRP 384/2010 -15- fixed after hearing the judgment debtor and there is absolutely no irregularity in the sale. The learned counsel would rely on the Division Bench decision of this Court in _**1960 KLT 1032 [Paulose**_ ## _**Varghese & Others v. Balagangadara Thilak &**_ _**Others],**_ wherein inadequacy of the price during the sale of a property for realising the decree debt was considered and held thus: “13.It remains to be considered whether the sale of the shares of the widow and children other than the fifth plaintiff is liable to be set aside on the ground of inadequacy of price. Mere inadequacy of price without proof of material irregularity in publishing and conducting the sale is no ground for setting aside the sale and even when both exist, the proper remedy is to be sought by an application under O.21, R.90, C.P.C. There is some evidence in this case that the property was sold for about half the price it should have fetched, but it should not be ignored that this was a sale through court with all the attendant risks of further litigation. There was no application for setting aside the sale within 30 days by the guardian and it is too late now to rely on inadequacy of price, if any, as a ground for avoiding the sale. We therefore hold that the sale is not CRP 384/2010 -16- liable to be set aside on this ground.” In support of his argument, the learned counsel also relies on the decision in _**1971 KLT SN.16 [Naithi v. Ouseph]**_ , wherein also it is observed that unless material irregularity is proved in the publishing and conducting of the sale, the court will not interfere with the sale on the ground of inadequacy of price alone. In _**AIR 1971 SC 2337 [Radhy Shyam v. Shyam Behari Singh]**_ also, it is held by the Honourable Supreme Court that “ _mere proof of a material irregularity such as the one under Rule 69 and inadequacy of price realised in such a sale, in other words injury, is, therefore, not sufficient. What has to be established is that there was not only inadequacy of the price but that that inadequacy was caused by reason of the material irregularity or fraud. A connection was thus to be established between the inadequacy of the price and the material_ CRP 384/2010 -17- _irregularity.”_ 14. The learned counsel for the decree holder would argue that apart from the objection regarding the deposit of sale price within the stipulated time and the alleged irregularity regarding the proclamation of sale, there is absolutely no other material to set aside the sale and therefore even if the sale price is found to be low, for which there is no evidence in this case, the sale cannot be set aside. 15. Regarding the proclamation, the learned counsel for the decree holder argues that after fixing the upset price on 25.06.2005, the matter was adjourned to 21.01.2006 for taking steps for proclamation of sale. It is submitted that on that date, there was no sitting of the court and therefore the proclamation of sale was not made in the open court. The learned counsel for the decree holder would argue that proclamation of sale is a process which requires CRP 384/2010 -18- to be done in a particular manner as contemplated under the CPC and Civil Rules of Practice by affixture of the sale notice at important places and court hall and also by beating of drums and giving publicity. The fact that there was no sitting on 21.01.2006 for making the sale proclamation will not be of any relevance at all because there is a report that all requirements regarding the sale proclamation were carried out on that date. For the sale scheduled on 07.02.2006, publication was made in the Village Office and notice was affixed on the court notice board. The sale scheduled on 07.02.2006 was adjourned to 13.02.2006 and on that date, the sale was conducted and the second respondent was the auction purchaser being the highest bidder. What was made on 25.06.2005 was only an order to proclaim and sell. The date on which the proclamation was made, is what is relevant. Since the proclamation was made on 21.01.2006 and the CRP 384/2010 -19- sale conducted on 13.02.2006, there is absolutely no irregularity in the sale and there is also no need for a fresh proclamation as claimed by the judgment debtor, is the argument of the learned counsel appearing for the decree holder. 16. The learned counsel for the decree holder also states that there is no irregularity regarding the deposit. He relies on the decision in _**AIR 1972 SC 1293 [Haru Das Gupta v. The State of West Bengal]**_ , wherein the Honourable Supreme Court held as follows:- “5. xxx xxx xxx The rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded (see Goldsmiths' Company v. West Metropolitan Railway Company, (1904) 1 KB 1). This rule was followed in Cartwright v. Mac Cormack, (1963) 1 AII ER 11 at p.13, where the expression “fifteen days from the date of commencement of the policy” in a cover note issued by an insurance company was construed as excluding the first date and the cover note to commence at midnight of that day, and also in Marren v. Dawson Bentley & Co. Ltd. (1961) 2 QB CRP 384/2010 -20- 135, a case for compensation for injuries received in the course of employment, where for purposes of computing the period of limitation the date of the accident, being the date of the cause of action, was excluded. (See also Stewart v. Chapman, (1951) 2 KB 792 and In re North Ex parte Lasluck, (1895) 2 QB 264). Thus, as a general rule the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. (see Halsbury's Laws of England, (3[rd] Ed.) Vol.37, pp.92 and 95). There is no reason why the aforesaid rule of construction followed consistently and for so long should not also be applied here.” ## 17. In _**1980 KLT 132 [Janu Amma v. RDO,**_ _**Kozhikode],**_ this Court was considering the calculation of time with reference to Section 8 of the Interpretation in General Clauses Act and held as thus: “3. Section 8 of the Interpretation and General Clauses Act reads: “In any Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word 'from', and for the purpose of including the CRP 384/2010 -21- last in a series of days or any other period to use the word 'to'.” If the legislature had used the word “from” in the relevant portion of clause (b) of the proviso to sub-section (2) of S.20 of the Act, there would have been no difficulty, for S.8 of the General Clauses Act would, in terms, have applied to save the petitioner's application. The word used however is not “from”, but “of”. In the latter part of clause (b) where the time is reckoned from the date of the Collector's award, the period of six months begins to run 'from' the date of the award. Likewise in clause (a) of the proviso which refers to the period of limitation when a person was present or represented before the Collector the word “from” is consciously used. Nevertheless in the earlier portion of clause (b) dealing with receipt of notice under S.12(2) the period is mentioned as six weeks 'of' the receipt of the notice. That is the provision which is relevant to the petitioner's application. The question is, does the use of the expression “of” instead of “from” make any difference? I do not think it does. The legislature, in my view, would not have intended a different meaning when it used the word 'of' in clause (b) instead of 'from'. The meaning of “of” in this context is the same as “from”. “Six weeks of the receipt of the notice” would mean exactly what it would be if the expression was 'six weeks from the date CRP 384/2010 -22- of receipt of the notice'. The legislature has not evidenced any intention to exclude the principle of S.8 of the General Clauses Act.” 18. The learned counsel for the decree holder submits that even as early as in 1093 ME, a Division Bench of the Chief Court of Cochin in _**IX CLR 355 [Kunhan Rajah v. Krishna Warriar]**_ considered the question regarding the deposit of the sale price and held that both by the Common law and by the General Clauses Regulation, the first terminal day, that is, the date of sale notice ought to be excluded while calculating the period of deposit. Applying these principles to the case in hand and if the first date is excluded, there is absolutely no irregularity regarding the period within which the sale price has been deposited by the auction purchaser, is the argument of the learned counsel appearing for the respondents. 19. After having heard both sides in CRP 384/2010 -23- detail and after having perused the records, I find that there is absolutely no ground to set aside the sale, either on the ground of irregularities regarding the proclamation of sale and deposit of sale price, or on the ground of inadequacy of price. It is after hearing both sides that the upset price was fixed at Rs.50,000/- on 25.06.2005, when the settlement of proclamation was made. The judgment debtor did not raise any objection regarding the fixation of the upset price. Neither did he raise any objection regarding selling only a part of the property to satisfy the decree debt. This would indicate that he was convinced about the fact that the sale of the entire property would be necessary to wipe off the decree debt. After settling the terms of the proclamation, there was an order made by the court to proclaim the sale to 25.06.2005. Then again it was adjourned for taking steps finally for proclamation of sale to 21.01.2006, on CRP 384/2010 -24- which date, the proclamation is seen to have been made by complying with necessary requirements. The sale was ultimately held on 13.02.2006, which is within 30 days from the proclamation day, ie.. 21.01.2006. The requirement of Order XXI Rule 69 CPC is only to the effect that when sale is adjourned for a period beyond 30 days, a fresh proclamation needs to be made. The fact that there was no posting or sitting of the court on 21.01.2006 will not conclude that there was no proclamation made because nothing has to be proclaimed from a sitting court. The entire requirements have to be done outside the court hall by beating the drums, publishing of notices, affixture of notice on the notice board etc., which appear to have been done and the judicial officer need not play any role by sitting on the dais on that day. Therefore the argument of the learned counsel appearing for the revision petitioner is not sustainable. In case, the sale CRP 384/2010 -25- proclamation is made on 21.01.2006, sale held on 16.02.2006 is absolutely within time. 20. Regarding the inadequacy of the price, relying on the decisions cited above, it has to be held that unless there is any other material irregularity pointed out, the inadequacy of the price alone may not be sufficient to set aside the sale. It is also to be observed that the judgment debtor did not raise any objection, nor did he point out to sell only a portion of the property, before the sale was proclaimed or conducted. 21. The argument of the learned counsel for the revision petitioner that the deposit of the balance sale price was not in time, is also not acceptable because excluding the first date, the balance consideration was made in time and there is absolutely no irregularity in that aspect as well. None of the objections raised by the learned counsel for the revision petitioner is CRP 384/2010 -26- therefore worthy of consideration. I find no irregularity whatsoever to set aside the sale in the instant case. 22. On 25.06.2005, there was an order to take steps for sale proclamation and for having fixed the upset price at Rs.50,000/- and adjourned to 25.07.2005. This was done after the draft sale proclamation was produced and the parties were heard on settlement of the sale proclamation. No steps for sale proclamation was taken on 25.07.2005 and therefore, it was adjourned to 29.08.2005. On 29.08.2005, it was found that the steps taken for proclamation of sale was not proper and the decree holder was permitted to cure the defects and remit the charges within five days and adjourned for proclamation and sale to 20.10.2005, on which date also, the proclamation of sale was not effected and the decree holder was directed to render necessary assistance for proclamation of sale and adjourned to 28.11.2005. CRP 384/2010 -27- On that day, again the decree holder was directed to take steps to cure the defects within four days and on 05.12.2005, the decree holder was again directed to render assistance for the proclamation of sale. The proclamation of sale is alleged to have been done on 21.01.2006 as per the records of the proclamation. The fact that there was no sitting on that day is not relevant at all because on 13.02.2006, the court has observed that the proclamation of sale is effected properly. The court is convinced about all the formalities for proclamation of sale being complied with and it was directed that the matter be taken at 1.55 p.m. for sale and that is how the sale was conducted at 1.55 p.m. on 13.02.2006. I find no reason to set aside the impugned Judgment. The revision petition is dismissed. No costs. **Sd/-** ## **ASHOK MENON** dkr/jg ## **JUDGE** CRP 384/2010 -28-