KANAKAMMA Vs. N RAVEENDRANATHAN

JUDGEMENT

(1.) Petitioner was a surety who offered her immovable property as security for the suit claim raised by the first respondent / plaintiff in OS No. 95 of 1997 on the file of the Sub Court, Kollam against the second respondent, defendant. Suit was one for recovery of money. Petitioner had offered her immovable property as security and stood as surety for the second respondent / defendant when an order was passed against him in the suit for interim attachment before judgment under O.38 R.5 of the Code of Civil Procedure. Suit was decreed directing realisation of an amount of Rs.2,76,491/- with interest and cost from the defendant and his assets. In execution of the decree, the immovable property offered as security by the judgment debtor / surety was proceeded for sale. Proclamation was settled after notice to the 2nd respondent / judgment debtor and also petitioner / surety. After such settlement of proclamation for sale, petitioner had moved an application (P3) for review of the order of the sale raising twofold contentions that the upset price fixed was grossly inadequate, and that no attachment was made over the property offered by her as security before settling the proclamation for sale. P3 petition was opposed by the decree holder by filing P4 objections. Petitioner moved P5 application for disposal of her P3 petition before proceeding with the sale. Writ Petition has been filed invoking the visitorial jurisdiction vested with this Court to issue direction to the Court below to dispose of P3 petition within the time limit fixed and also to adjourn the sale of the petitioner's property till P3 petition is considered and disposed of in accordance with law.

(2.) I heard the counsel on both sides. Learned counsel for the petitioner inviting my attention to R.370 of the Civil Rules of Practice contended that when a surety is proceeded in execution of a decree, the procedural requirement for attachment of that property before settling proclamation for sale has to be followed by the Court and, if that is not done, it is a material irregularity vitiating the entire proceedings. Any sale conducted without prior attachment of the property before settling the proclamation is liable to be quashed as the proceedings for sale suffer from material irregularity is the further submission of the learned counsel. Upset price fixed by the Court settling the proclamation is also challenged by the learned counsel as grossly inadequate and not reflective of the market value of the property proceeded for sale.

(3.) Attachment of property prior to sale is intended to safeguard the interest of the purchaser. No further encumbrance over the property at the instance of the judgment debtor or any other person when proceeding with the sale of the property in execution of a decree is ensured by order of attachment of the property before settling the proclamation for sale. Even assuming that there was no attachment of sale before settlement of the proclamation, how far it is open to the surety or the judgment debtor to canvass such omission as a defect as vitiating a sale proceeded has to be examined with reference to the explanation to R.90 of O.21 of the Code of Civil Procedure. The explanation in the above rule states that the mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under the rule. The explanation endorse the view that the absence of, or defect in the attachment is not a ground for setting aside the sale. Further more, if the surety has any grievance that there was no attachment of his property before proceeding for sale, that objection should have been canvassed before proclamation was settled. She has no case that the execution proceedings were without giving notice to her. The liability of a surety for the purpose of the decree to the extent she has rendered herself personally liable is in the same manner as if the surety was a party to the decree. S.145 of the Code of Civil Procedure makes it abundantly clear that when the surety has furnished any property as security, the decree passed in the suit can be satisfied by sale of such property with the extent of the security. Security of immovable property was given by the surety in the present case to lift an attachment passed against the defendant in the suit. It is futile on the part of the surety to contend that the bond given by him does not create charge over his property for the suit claim. In that view of the matter also, even if the decree has not specifically provided for a charge over the property given as security by the surety, in the given facts of the case, the omission to attach the property before settling the proclamation is of no consequence. Upset price fixed for sale of the property in the proclamation settled was inadequate, the other ground canvassed by the surety, needless to point out, was a matter which required to be taken and agitated in the enquiry on the settlement of proclamation for sale. There is no merit in the case projected by the surety and, I find no direction or order as requested by her can be issued in exercise of the supervisory jurisdiction vested with this Court.