H.P. Sandesh, J.

1. This miscellaneous first appeal is filed challenging the order dated 16.12.2017 passed on I.A. No. 3 filed under Order XXI Rule 90 read with Section 151 of CPC in Ex. No. 1221/2012 on the file of the XLII Additional City Civil and Sessions Judge, Bengaluru.

2. Heard the learned counsel appearing for the respective parties.

3. The factual matrix of the case of the appellants is that the appellants have subscribed the chit for an amount of Rs. 6,00,000/-from respondent No. 1-chit fund and had paid certain installments in the chit subscribed and the appellants have bid a chit for the amount of Rs. 1,80,000/-and balance of Rs. 4,20,000/-was paid after deducting the foreman commission and subsequently the appellants have also paid the amount to respondent No. 1 and respondent No. 1 under the Karnataka Chit Fund Act had initiated proceedings before the arbitrator and respondent No. 1 has not been served with any notice and an ex parte order came to be passed on 31.10.2008 against the appellants directing them to pay a sum of Rs. 5,10,000/-with interest at 21% per annum along with penal interest at the rate of 3% and the said order was not communicated to the appellants at any point of time.

4. It is also the case of the appellants that the respondents have filed the execution petition in Ex. No. 1927/2009 and the same was dismissed for default and again the respondents have filed the execution petition in Ex.P. No. 1221/2012 and claimed an amount of Rs. 14,99,127/-as on 28.05.2012. It is also the contention of the appellants that they have entered their appearance and paid the amount of Rs. 25,000/-in cash before the Court and had also paid a sum of Rs. 1,00,000/-through a cheque bearing No. 184130 dated 27.02.2013 and the decree holders have filed the petition calculating the wrong amount and erroneously claimed exorbitant amount from the appellants. It is also the contention of the appellants that the appellants were in turn about to pay the amount to the respondents, at that time, the respondents obtained the order of attachment of the property bearing Sy. No. 1 situated at Erigenahalli village, Kasaba Hobli, Nelamangala taluk measuring 2 acres 27 guntas and had also auctioned the property in public without notice to the appellants and the sale was conducted at the spot without any paper publication and no reserve price was fixed by the Trial Court and in the spot auction, one Rajesh had bid for Rs. 61,00,000/-but he being the highest bidder, not deposited the statutory deposit in the spot and also failed to appear in the Court and subsequently, without any further paper publication or notification on re-sale as provided under Order 21 Rule 87 of CPC and without issuing fresh proclamation, the Court sale was conducted at 4.15 p.m. and the persons who were colluded with the decree holder was present before the Court and the Court auction was conducted and the auction was closed at Rs. 63,25,000/-. Hence, the appellants had filed the application under Order XXI Rule 90 read with Section 151 of CPC for setting aside the said sale on the ground of irregularities in conducting public auction and the said application came to be dismissed without any reasoning and without considering the objections raised by the appellants. Hence, the present appeal is filed.

5. The main contention urged in the appeal that though an order was passed in the year 2008, an execution petition in Ex. No. 1927/2009 was filed by the decree holder and the same was dismissed for default and again without restoring the said execution petition, the decree holder again filed the present execution petition in the year 2012 hence, the second execution petition is not maintainable in law and the said fact has not been brought to the notice of this Court. It is also contended that the Court has passed the order of attachment in respect of Sy. No. 1/2 measuring 2 acres 29 guntas and the Court has ordered for spot sale without fixing the reserve price and the sale cannot be held without fixing the reserve price and no opportunity was offered to the judgment-debtor in fixing the reserve price since the property value is more than 2 crore and the liability is only Rs. 5,10,000/-along with interest at 21% as on 2008 hence, there is a irregularity in fixing the reserve price and the sale was conducted without fixing the reserve price which is bad in law. It is also contended that the decree holder had not made any paper publication in the local newspaper nor in the Courthouse nor in the Government Taluk office where the jurisdiction of the property is situated and also in the office of Gram Panchayat having jurisdiction over the village in accordance with Order XXI Rule 54(2) of CPC along with Order 21 Rule 67(2) of CPC hence, without which, the proclamation of sale is vitiated, thus, the decree holder had manipulated to bid in collusion with the auction purchaser for the lower price as the records of the execution proceeding and also the proceedings of the spot sale conducted does not show that the sale was given wide publicity. It is contended that the sale proclamation was drawn in English as the language of he Court is in Kannada, the Court has to issue proclamation in accordance with Order XXI Rule 66(1) in Kannada without which, the sale has to be set aside for non-publication in Kannada which goes to show that the sale proclamation was not conducted in accordance with the Rules of CPC.

6. The counsel also vehemently contend that the decreetal amount is Rs. 5,10,000/-along with interest and the proclamation issued for spot sale is for realization of Rs. 14,99,127/-as on 30.06.2017 but the spot sale was held for an amount of Rs. 61,00,000/-and the Court sale at Rs. 63,25,000/-which is more than 4 times the amount to be recovered and no reserve price has been fixed by the Court and the property is worth Rs. 2 crore and the Court has to follow the procedure in accordance with Order XXI Rule 64 of CPC and hence, the very sale is bad in law. It is also contended that the Court sale was conducted at 4.15 p.m., and the Court auction was not known to any person neither the sale was published in newspaper nor in the Court premises and the sale was conducted at the last hour without the knowledge of the persons who are ready to bid in the auction without fixing the time, the said auction cannot be conducted and the sale has been made for lesser price in collusion with the decree holder who was the highest bidder at spot sale and he was absent before the Court who had participated in the spot auction nor he has deposited the statutory deposit and the same goes to show that the spot auction was not conducted on the spot and even the bailiff was not examined regarding the value of the property and hence, the Trial Court failed to take note of all these facts into consideration.

7. It is also contended that the Court ought to have been seen that as per the Government guidelines the value fixed is Rs. 16,00,000/-for one acre and for two acres twenty nine guntas, the guideline fixed is Rs. 43,60,000/-but the property has been auctioned for Rs. 63,25,000/-and the market value is 4 times double the guidelines value and worth 2 crore and without fixing the reserve price, the Court cannot auction for lesser price which is an irregularity in conducting the sale and hence, it requires interference.

8. The senior counsel Sri Padmanabha Mahale in his arguments, vehemently contend that the very decree is also beyond the limitation and the same was not taken into note of by the Trial Court and the public auction was without the publication and reiterated the grounds urged in the appeal memo. The counsel also would vehemently contend that portion of the property ought to have been sold since the decree is only for an amount of Rs. 5,10,000/-.

9. The counsel for the respondents would vehemently contend that earlier, execution petition was filed and the same was dismissed and the same is not a bar and the counsel brought to notice of this Court that the appellant was arrested on 15.09.2016 and he was produced before the Court and he himself given the property details and the said property was attached and the appellants have not filed any application to set aside the attachment order and sale warrant was also issued and reserve price is fixed as Rs. 55,00,000/-and the same is evident in the auction itself and the spot sale conducted on 30.06.2017, reserve price is quoted as Rs. 55,00,000/-and which was auctioned for Rs. 61,00,000/-but only in the Court auction, it was auctioned for Rs. 63,25,000/-. The counsel also vehemently contend that before attachment, all procedure was followed and also the counsel would submits that the appellant has given six post dated cheques and all are dishonoured and then only warrant was issued and he was arrested and hence, now he cannot contend that there is a irregularity and fraud in selling the property.

10. The counsel for respondent No. 2 would vehemently contend that respondent No. 2 is an auction purchaser and he has purchased the property in the Court auction and he is the highest bidder and he has paid the entire amount and the Trial Court also answered all the grounds which have been urged in the application. The counsel further contend that though the property is worth more than 2 crore, no document is produced to show the same and the same is also observed by the Trial Court in the order. The counsel also would vehemently contend that in order to show the material irregularity also, no material is placed before the Court and for the first time, he cannot raise the same before this Court. The decree is executable within a period of 12 years and not as three years as contended by the counsel for the appellants. The counsel also vehemently contends that another application was filed under Order XXI Rule 97 and in order to prove the fraud on the Court, no material is placed before the Court.

11. The counsel in support of his arguments relied upon the judgment of the Apex Court reported in (2017)6 SCC 770 [LQ/SC/1995/1128] in the case of CHILAMURTI BALA SUBRAHMANYAM vs SAMANTHAPUDI VIJAYA LAKSHMI AND ANOTHER and brought to notice of this Court paragraph 14 wherein the Apex Court discussed with regard to scope of Order XXI Rule 90 of the Code and under 90(2) it is held that 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. The counsel also brought to notice of this Court to the judgments reported in (2006)4 SCC 476, (1964) 6 SCR 1001 and 1991 SUPP.(2) SCC 691 and extracted paragraph 14 of the said judgment wherein discussed with regard to Order XXI Rule 67(1) read with Order XXI Rule 54(2) and the Apex Court observed that the Trial Court has said that the sale should be given wide publicity but that does not necessarily mean by publication in the newspapers. The provisions of Order XXI Rule 67 clearly provides that if the sale is to be advertised in the local newspaper, there must be specific direction of the Court to that effect. In the absence of such direction, the proclamation of sale has to be made under Order XXI Rule 67(1) as nearly as may be in the manner prescribed by Rule 54 sub-rule (2). Rule 54 sub-rule (2) provides for the method of publication of notice which reads as follows:

"54.(2): The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the courthouse, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village."

12. The counsel referring this judgment would vehemently contend that the judgment is aptly applicable to the case on hand and also brought to notice of this Court paragraph 24 wherein observed that the law on the question involved herein is clear. It is not the material irregularity that alone is sufficient for setting aside of the sale. The judgment-debtor has to go further and establish to the satisfaction of the Court that the material irregularity or fraud, as the case may be, has resulted in causing substantial injury to the judgment-debtor in conducting the sale. It is only then the sale so conducted could be set aside under Order XXI Rule 90(2) of the Code. Such is not the case here. The counsel referring this judgment would vehemently contend that the judgment-debtor did not pay the decreetal amount and he himself furnished the documents after his arrest and thereafter only the property was attached and the sale was conducted at the spot and also at the Court and no procedure irregularity or fraud and hence, the same cannot be accepted.

13. Having heard the learned counsel appearing for the respective parties and also on perusal of the grounds urged in the appeal memo as well as the impugned order, the question arise for the consideration of this Court that:

"Whether the Trial Court committed an error in dismissing the application filed under Order XXI Rule 90 read with Section 151 of CPC and whether it requires interference for non-compliance of Order XXI Rule 54(2) of CPC along with Order XXI Rule 67(1) of CPC"

14. Having heard the learned counsel appearing for the respective parties, the main contention that the appellants were a subscribers of the chit and the same is not in dispute and also not in dispute that chit amount was Rs. 6,00,000/-and the same was bided for an amount of Rs. 1,80,000/-and the remaining amount payable was Rs. 4,20,000/-and the same was paid and no dispute to that effect. It is also the contention that an ex parte order was passed but on perusal of the order it shows that notice was issued, he has not claimed and an order was passed and no dispute that earlier also execution petition in Ex.P. No. 1927/2009 was filed and the same was also dismissed for default. It is also not in dispute that second execution petition was filed on 25.05.2012 and the very contention that the same is beyond limitation.

15. The counsel for the appellants brought to notice of this Court Section 71 of the Chit Funds Act, 1982 wherein it is clear that every order passed by the Registrar or the nominee under Section 68 or Section 69 and every order passed by the State Government in appeal under Section 70 for payment of any money shall, if not carried out on a certificate issued by the Registrar, be deemed to be a decree of a civil Court, and shall be executed in the same manner as a decree of such Court, or be executed in accordance with the provisions of any law for the time being in force for the recovery of amounts as arrears of land revenue. Provided that no application for execution under clause (b) shall be made after expiry of three years from the date fixed in the order, and if no such date is fixed, from the date of the order. Though the counsel would vehemently contend that no such certificate was issued but the said certificate was also issued by the Registrar and hence, it is clear that it is a decree of a civil Court and shall be executed in the same manner as a decree of such Court and hence, Section 71(a) is applicable and not Section 71(b) as contended by the counsel for the appellants. Hence, the very contention that time period is within three years and execution ought to have been filed within three years cannot be accepted. Once a certificate is issued, it is deems to be a decree of civil Court and hence, execution petition can be filed within 12 years of the decree and validity of the decree is also if it is a decree passed by the civil Court, the period of limitation is 12 years and not three years as contended and Section 71(b) is not applicable as contended by the counsel for the appellants.

16. The other contention that no reserve price is fixed. On perusal of the auction conducted at the spot, it is very clearly mentioned that the Government rate is Rs. 55,00,000/-and the document also very clear that Government reserve price is fixed as Rs. 55,00,000/-and the spot sale was conducted and highest bidder auctioned for Rs. 61,00,000/-but he did not come forward to pay the amount and when the Court auction was conducted, the sale was conducted for higher price of Rs. 63,25,000/-and the amount was also deposited. It is also contention of the appellants' counsel that there is an irregularity and no wide publication was given and if publication was given, it would have fetched more amount. The judgment relied upon by the counsel for the respondents is CHILAMURTI's case wherein the Apex Court in paragraph 14 discussed with regard to Order XXI Rule 90 referring several judgments of the Apex Court of the year AIR 1964 SC 1300, (2006) 4 SCC 476 [LQ/SC/2006/342] and also 1991 Supp (2) SCC 691 and extracted the paragraphs 12, 13 and 14 of the said judgments and other judgment reported in (2000) 3 SCC 87 [LQ/SC/2000/369] wherein categorically held that there is no material irregularity in publishing or conducting the sale. There was sufficient compliance with Order XXI Rule 67(1) read with Order XXI Rule 54(2). It is also held that no doubt, the Trial Court has said that the sale should be given wide publicity but that does not necessarily mean by publication in the newspapers. Unless, clearly provide that if the sale is to be advertised in the local newspaper under the provisions of Order XXI Rule 67 and there must be specific direction of the Court to that effect. No such direction is found in the case on hand also and proclamation was issued. When such being the case, the very contention of the counsel that Order XXI Rule 67 and Rule 54(2) has not been complied, cannot be accepted. The Apex Court also in detail discussed by extracting Order XXI Rule 90 as well as 54(2). When the spot sale and Court auction was conducted and also in the spot sale, highest bid was Rs. 61,00,000/-and in the Court sale, it was Rs. 63,25,000/-and accordingly, the amount was deposited, the very contention that there is material irregularity, cannot be accepted. The judgment is also clear that unless there is material irregularity, which has resulted in causing substantial injury to the judgment-debtor in conducting the sale, the question of interference by setting aside the sale which was conducted by conducting spot sale as well as Court sale does not arise. It is also observed in the judgment that when the sale was so conducted, could be set aside under Order XXI Rule 90(2) of the Code, when it has resulted in causing substantial injury to the judgment-debtor hence, I do not find any such circumstances warranted in the case on hand.

17. The other contention of the counsel that property is worth more than Rs. 2 crore and the final auction bid amount was only Rs. 63,25,000/-and the same is lesser amount. In order to substantiate the said contention also no material is placed before the Court by the appellants i.e., either before the Trial Court or before this Court. On the other hand, the very decree holders placed the material before the Court that guideline value is only Rs. 16,00,000/-at the time of conducting the sale per acre, hence, it comes around Rs. 43,00,000/-but it was sold for an amount of Rs. 63,25,000/-. When such being the case, the contention that the property was auctioned for lesser price, cannot be accepted.

18. The other contention of the appellants' counsel that public auction was conducted without the proper publication. Having perused the material on record it is not in dispute that there was an award and though contend that the same was passed ex parte, the same was not challenged and apart from that it is the contention of the counsel for the respondents that six post dated cheques were given and the same were dishonoured and thereafter the arrest warrant was issued and he was arrested and brought before the Court and when he was brought before the Court he only furnished the details of the property and the said property was attached and the same was auctioned only after attaching the property. The appellants also even not challenged the attachment and only after conducting the auction come up with an application under Order XXI Rule 90 on the ground that there is material irregularity but, no such irregularity is also placed before the Trial Court. The Trial Court also taken note of the grounds which have been urged before dismissing the application. The Trial Court even extracted the provisions of Order XXI Rule 90 of CPC and also taken note of the proviso of sub-rule (2) of Rule 90 of CPC while considering the application and also in paragraphs 9, 10 and 11, the Trial Court taken note of the scope of Order XXI Rule 90 and so also Order XXI Rule 54 for attachment of the property was considered and also taken note of the fact that judgment-debtor also failed to file any application to set aside the order of attachment and also taken note of the fact that on 01.04.2017, at the instance of the decree holder, the Trial Court has issued the sale warrant and sale proclamation and fixed the date for spot sale and also Court sale and bidders were also auctioned the property. When such being the case, the question of irregularity does not arise and nothing is found on record to show that fraud was committed and I have already pointed out that base price was fixed as Rs. 55,00,000/-and thereafter auction was conducted and the Trial Court also taken note of the fact that the land value as on the sale was Rs. 16,00,000/-per acre and auction amount is more than that. Hence, I do not find any merit in the appeal to set aside the order dated 16.12.2017 passed by the Trial Court on I.A. No. 3 filed under Order XXI Rule 90 read with Section 151 of CPC thus, I answer the point as negative.

19. In view of the discussions made above, I pass the following:

ORDER

The appeal is dismissed.