There was no irregularity or fraud in conducting auction sale and JD not suffered substantial injury - ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up can't raise under rule 90 - .absence or defect in the attachment of property sold, will not be a ground for setting aside sale
R. Viswanathan Versus R. Santhanam & Another
Head Note
Code of Civil Procedure, 1908 - Order 43 Rule 1(j), Order 21 Rule 54(1-A), Order 21 Rule 54 and Rule 66(2), Order 21 Rules 72 and 72-A, Order 21 Rule 54, Rule 66 and Rule 67, Order 21 Rule 58, Order 21 Rule 69, Order 34 Rule 5, Rule 90(3) Order 21, Order 43 Rule 1 (j) Transfer of Property Act, 1882 - Section 60 - Recovery of money - fraud consent decree set-aside of sale sought - Appellant/Judgment Debtor/respondent submitted that, first respondent filed suit before Sessions Court, for recovery of money based on mortgage - By consent, a preliminary decree was passed and a final decree was passed - first respondent filed execution petition and appellant filed various applications in execution petitions which were dismissed - suit property was sold by public auction and appellant filed application to set aside Court auction sale which was dismissed - Hence instant appeal
Issue is Whether value of property fixed is very low and whether appellant was not given any notice for issuance of fresh proclamation
Court held - When appellant had an opportunity to raise question of value of property, same was rejected - Therefore, as per Sub-Rule 3 of Rule 90 of Order 21 C.P.C., no fresh application can be entertained by the Court in this regard - Therefore, it is not open to appellant to agitate this issue again before Executing Court or before this Court further, appellant has not challenged preliminary decree or final decree by revision or appeal mere absence or defect in the attachment of property sold, will not be a ground for setting aside sale - Further, appellant failed to prove that there was irregularity or fraud in conducting auction sale and he suffered substantial injury - Judge has complied with provisions of Order 21 C.P.C., in conducting Court auction - From the records, it is seen that appellant had participated in the proceedings at every stage and upset price was not reduced - Therefore, contention of appellant that on the date of auction, there was no upset price, is not correct - Similarly, as he has participated in proceedings, contention of appellant that no notice was served, is untenable and, intention of appellant is to drag on proceedings – execution application filed under Order 21 Rule 90 C.P.C., is devoid of merits – application dismissed –
Para 17, 18, 20, 21, 23
Cases Referred:
M.Vijaya Vs. M.R.Chinnadurai and others [2015 (3) LW 329],
Kharaiti Lal vs. Raminder Kaur and others [AIR 2000 SC 1148].
Maganlal & Anr. v. Jaiswal Industries, Neemach & Ors.,[1989] 4 SCC 344=[1989] 3 SCR 696=AIR (1989) SC 2113
C.Velu @ Venkatesalam and 2 others Vs. S.Kandasamy Chettiar (died) and others [2010 (5) CTC 77],wherein at paragraphs 24 and 35
Philomina Jose Vs. Federal Bank Ltd. and others [2006 (2) SCC 608],wherein at paragraphs 6 and 10,
Mahakal Automobiles and another Vs. Kishan Swaroop Sharma [2008 (13) SCC 113],wherein at paragraphs 8 and 11
Mhadagonda Ramgonda Patil v. Shripal Balwant Rainade [1988 (3) SCC 298].
Sheo Narain Sah v. Deolochan Kuer [AIR 1948 Pat 208 : ILR 26 Pat 97].
AIR 1991 SC 770 [Jaswantlal Natvarlal Thakkar Vs. Sushilaben Manilal Dangarwala], wherein at paragraph 3.
Comparative Citation:
2016 (1) MWN(Civil) 55,
Issue is Whether value of property fixed is very low and whether appellant was not given any notice for issuance of fresh proclamation
Court held - When appellant had an opportunity to raise question of value of property, same was rejected - Therefore, as per Sub-Rule 3 of Rule 90 of Order 21 C.P.C., no fresh application can be entertained by the Court in this regard - Therefore, it is not open to appellant to agitate this issue again before Executing Court or before this Court further, appellant has not challenged preliminary decree or final decree by revision or appeal mere absence or defect in the attachment of property sold, will not be a ground for setting aside sale - Further, appellant failed to prove that there was irregularity or fraud in conducting auction sale and he suffered substantial injury - Judge has complied with provisions of Order 21 C.P.C., in conducting Court auction - From the records, it is seen that appellant had participated in the proceedings at every stage and upset price was not reduced - Therefore, contention of appellant that on the date of auction, there was no upset price, is not correct - Similarly, as he has participated in proceedings, contention of appellant that no notice was served, is untenable and, intention of appellant is to drag on proceedings – execution application filed under Order 21 Rule 90 C.P.C., is devoid of merits – application dismissed –
Para 17, 18, 20, 21, 23
Cases Referred:
M.Vijaya Vs. M.R.Chinnadurai and others [2015 (3) LW 329],
Kharaiti Lal vs. Raminder Kaur and others [AIR 2000 SC 1148].
Maganlal & Anr. v. Jaiswal Industries, Neemach & Ors.,[1989] 4 SCC 344=[1989] 3 SCR 696=AIR (1989) SC 2113
C.Velu @ Venkatesalam and 2 others Vs. S.Kandasamy Chettiar (died) and others [2010 (5) CTC 77],wherein at paragraphs 24 and 35
Philomina Jose Vs. Federal Bank Ltd. and others [2006 (2) SCC 608],wherein at paragraphs 6 and 10,
Mahakal Automobiles and another Vs. Kishan Swaroop Sharma [2008 (13) SCC 113],wherein at paragraphs 8 and 11
Mhadagonda Ramgonda Patil v. Shripal Balwant Rainade [1988 (3) SCC 298].
Sheo Narain Sah v. Deolochan Kuer [AIR 1948 Pat 208 : ILR 26 Pat 97].
AIR 1991 SC 770 [Jaswantlal Natvarlal Thakkar Vs. Sushilaben Manilal Dangarwala], wherein at paragraph 3.
Comparative Citation:
2016 (1) MWN(Civil) 55,
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