1. The appellant herein, namely, P.L.V. Giri is the judgment-debtor while respondents 1 and 2, namely, A. Subramaniam and Palaniappan are respectively the decree-holder and Court-auction purchaser.
2. Pursuant to a mortgage decree passed in O.S. No. 145 of 1972 on the file of the Subordinate Judge, Chengalpattu, for a sum of Rs. 1,44,045.85, execution had been levied in E.P. No. 95 of 1974 and despite best of efforts, substantial amounts could not be realised, notwithstanding the fact that the execution proceedings had been pending quite long and consequently, the Execution Petition was closed on 15.6.1980.
3. However, second round of battle commenced by way of levy of execution by filing E.P. No. 246 of 1980 before Subordinate Judge, Chengalpattu, for realisation of Rs. 1,07, 069, by way of sale of the property, which is of the following description.
All those parts and parcels of land situate in Nandambakkam village sub-registration district of Alanthur, registration district of Madras, bearing Survey Nos. 178/1, 178/2, 178/3 and 51/1 part and bounded:
On the north : by Poonamallee High Road;
south : by Ethirajulu Pillai's land;
east : by part of land bearing S. No. 178/1, 178/2, 178/3 and 51/1 part purchased by
M/s. Nachiappa Metal Corporation.
west : by the lands belonging to late A.K.D. Venkataraja, and Chella Nattar
within this, land measuring 79 cents (seventy nine cents) in all and as marked 'green' with letter 'A' in the blueprint plan annexed with the sale deed dated 3.3.1965, together with factory buildings, built with trusses, purlins and asbestos sheet roofing, measuring 100' x 50' x 40' respectively, well, trees and other appurtenances thereto-Nandambakkam Panchay at Ward No. 1.
4. On 19.6.1981, the property was ordered to be proclaimed for sale to be held on 22.7.1981 originally, by notifying the plaintiffs value at Rs. 50,000 subject to encumbrances; Amm's value at Rs. 6,75,000 and the upset price at Rs. 5,00,000 subject to encumbrance. However, the sale was stopped at the instance of the judgment-debtor and 2.9.1981 was fixed as the date of sale, on the same terms, but by including the valuation of Rs. 12,00,000, as given by the judgment-debtor.
5. The sale, however, as expected, could not take place on the respective dates, either as a result of adjournments of sale, at the instance of the judgment-debtor, by making payments in piecemeal towards part satisfaction of the decree or for want of bidders, in spite of reduction of upset price on two occasions.
6. Finally on 30.6.1983, upset price was reduced to Rs. 3,00,000 and the sale was notified to be held on 17.8.1983. Consequently, a fresh proclamation was issued on 7.7.1983 fixing the date of sale as 17.8.1983 on the same terms, excepting the upset price, which was fixed at Rs. 3,00,000 subject to encumbrance.
7. On the date fixed for sale, the judgment-debtor filed an application in E.A. No. 300 of 1983 for adjournment of sale, by making payment towards part-satisfaction of the decree and consequently, the sale was adjourned, on the same terms, to 14.9.1983, on which date, the Presiding Officer was on leave and therefore, the sale got adjourned to 21.9.1983. Again on 21.9.1983, the Presiding Officer was on leave and therefore the sale got adjourned to 28.9.1983 on which date, the property was sold for Rs. 3,52,000 to the 2nd respondent-auction purchaser. The said sale price, and the poundage had been deposited into court.
8. It is worthwhile to note at this juncture that the sale got adjourned not less than eight occasions till 14.9.1983, at the instance of the judgment-debtor on his applications in E.A. Nos. 497/81, 124/82, 287/82, 352/82, 358/82, 388/82, 437/82 and 41/83, of course, by making payments in piecemeal towards part-satisfaction of the decree.
9. Subsequently, the said E.P. No. 246 of 1980 was transferred to Sub Court, Poonamallee and renumbered as E.P. No. 10 of 1984 on its file.
10. The judgment-debtor thereafter filed a petition in E.A. No. 10 of 1984 under Order 21, Rule 90, C.P.C. for setting aside the sale, inter alia contending that the sale was conducted without proper publication; that the description of the property mentioned in the proclamation is not correct; that the property was sold for a very low price; that the amounts paid by the judgment-debtor have not been given due credit to; and that there was collusion between the decree-holder and the auction-purchaser, the brother's son of the judgment-debtor, who bears ill-feelings with him.
11. The court-auction purchaser resisted the said application categorically denying the misdescription of the property and the collusion, as stated by the judgment-debtor and in prth and substance, contended that the sale had been adjourned many a time, for want of bidders, necessitating the reduction of the upset price. That apart, the sale had been adjourned innumerable times, at the instance of the judgment-debtor by making piecemeal payments towards part-satisfaction of the decree, consenting to have the sale on the same proclamation; that the non-compliance of the provisions of Order 21, Rule 66, C.P.C. will not perse make the sale illegal, in the absence of objections regarding non-compliance at the proper time; and that there had been no nexus between inadequacy of the price and material irregularity.
12. Taking into consideration the respective claims and contentions of the parties, the Court below framed the lone and sole point for consideration, namely,
Whether the sale should be set aside on the ground of material irregularity of fraud in publishing or conducting the sale?
The point, so framed, was answered against the judgment-debtor, leading to the dismissal of the petition, with a direction to the parties to bear their respective costs. Aggrieved by the said order, the Judgment-debtor came forward with the present action.
13. Learned Counsel appearing for the appellant/Judgment-debtor pressed the following points for consideration:
(1) The failure on the part of the Court below to comply with the salutary provisions adumbrated under Order 21, Rules 64 and 66(2)(a), C.P.C., in the sense of not bringing in such portion of the property, as may seem necessary to satisfy the decree; by bringing the entirety of the property to sale, renders the very sale itself invalid, as being illegal and without jurisdiction, and in any event, the said sale has got to be set aside as having caused substantial and irreparable injury to the judgment-debtor, attracting the provisions of Order 21, Rule 90, C.P.C.;
(2) The failure to issue fresh proclamation for the sale held on 28.9.1983, which is beyond thirty days of the date of sale originally fixed, i.e., on 17.8.1983, vitiates the very sale itself, by reason on non-compliance of the provisions adumbrated in Sub-rule (2) of Rule 69 of Order 21, C.P.C.; and
(3) The failure to publish a proper proclamation as respects the correct description of the property to be brought for sale is a material irregularity, rendering the sale a nullity.
14. Learned Counsels for the decree-holder and auction-purchaser, have, however, repelled such" contentions.
15. Of the three points urged for consideration, points 1 and 3 may conveniently be grouped together and disposed of inasmuch as the arguments on those points are built upon the edifice of foundation of the salient principles adumbrated under Order 21, Rules 64 and 66 of the Code of Civil Procedure.
* * * * *
16. The effect of non-compliance of these provisions came to be considered on occasions more than once before the apex court of this country and the principles evolved in those decisions may be penned down hereinafter to serve as guidelines for arriving at a just decision in this case.
17. In Dhirendra Nath v. Sudhir Chandra , the Supreme Court expressed the view that non-compliance of the provisions of Order 21, Rules 64 and 66, C.P.C. by selling more extent of properly than necessary is not per force a nullity; but is a material irregularity in publishing or conducting the sale and the Court under the first proviso to Order 21, Rule 90, C.P.C. cannot set aside the sale, unless it is satisfied that the applicant had sustained substantial injury by reason of such irregularity and further a party, who received the notice of proclamation, but did not attend at the drawing up of the proclamation or did not object to the said defect cannot maintain an application under that provision.
18. in T.P.S. Reddi v. Padmavathamma . Their Lordships of the Supreme Court expressed thus:
It is manifest that where the amount specified in the proclamation of sale for the recovery of which the sale was ordered is realised by sale of certain items, the sale of further items should be stopped. This, in our opinion, is the logical corollary which flows from Order 21, Rule 64 of the Code, which may be extracted thus:
Any Court executing a decree may order that any properly attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.
Under this provision the Executing Court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied. The words 'necessary to satisfy the decree' clearly indicate c that no sale can be allowed beyond the decrial amount mentioned in the sale proclamation. In other words where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the Court should stop at the stage... The fact that the judgment-debtor did not raise an objection on this ground before the Executing Court is not sufficient to put him out of Court because this was a matter which went to the very root of the jurisdiction of the Executing Court to sell the properties and the non-compliance with the provisions of Order 21, Rule 64 of the Code was sufficient to vitiate the same so far as the properties situated in village Gudipadu were concerned."
19. In Ambati Narasayya v. M. Subba Rao and Anr. (1991) 1 L.W. 602, the Supreme Court, referring to the earlier decision in T.P.S. Reddi v. Padmavathamma , further elucidated the sanguine
principles adumbrated under Order 21, Rule 64, C.P.C. and expressed thus:
It is of importance to note from this provision that in all execution proceedings the court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree to be satisfied is small, the court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provisions of law only such portion of the property should be sola. This, in our opinion, is just a discretion, but an obligation imposed on the Court. Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without jurisdiction.
20. The latter two decisions did not at all refer to the former decision in the case of Dhirendra Nath v. Sudhir Chandra . Worthy it is to note at this juncture, that the latter two decisions of the Supreme Court were decided by two learned Judges, whereas the former decision of the apex Court happened to be decided by a larger Bench comprising of three learned Judges.
21. On the principle of stare decisis, it goes without saying, the latter pronouncements, being that of a smaller Bench consisting of two learned Judges of the Supreme Court, will have to give way to the earlier pronouncement of a larger Bench of three learned Judges of the apex court.
22. Let me now make an endeavour to sift the materials available on record, in the light of the principles evolved in the former decision rendered by a larger Bench of the apex court.
23. There can be no pale of controversy as to the fact that the property, in respect of which a mortgage has been created alone, got attached and brought to sale in execution of the decree. The case on hand is not an exception to this rule. The property brought to sale is an extent of land measuring 79 cents in certain specified survey numbers, bounded on three sides by lands belonging to individuals and on the other side by Poonamallee High Road, of course, with a factory building measuring 100' x 50' x 40'. The very property is subjected to a mortgage. This can very well be vouchsafed from the description of the property, given in the sale proclamation. As such, there can he no misdescription of the property brought to sale causing any sort of prejudice to the judgment-debtor.
24. Of course, during the course of the appeal, the judgment -debtor would contend that many constructions had been put up in the suit property and those constructions had not been included in the sale proclamation and because of such non-inclusion, a substantial injury had been caused to him by the fetching of a low price for the property sold in the auction. This sort of a contention had been raised for the first time during the course of appeal. Worthy it is to note that the execution proceedings commenced as early as 1974 and many a sale proclamation had been settled and in all those settlements of proclamation, he had been a lively participant and he did not at all demur or whisper anything as to the misdescription of the property, given in the sale-proclamations settled now and then. As such, this sort of objection cannot but be viewed as one which is made as an objection for objection's sake at this distance of time, obviously with a view to protract the proceedings.
25. Yet another objection emerging from the judgment-debtor revolves on the question of sale of the suit property in one lot. He would say, if the suit property had been divided into various plots, the plausibility of fetching a more price cannot be ruled out of consideration. It is further said that if such a procedure had been adopted, the decree amount could have been satisfied by the sale of plots comprised only in half of the extent of the suit property, and there could have been no occasion for excessive execution, in the sense of selling more extent of the property than what was required for the satisfaction of the decretal amount. Such an objection, of course, looks credible, on the face of it. But the sordid fact is that no tangible materials had been placed before the Court that division of the property into various plots is feasible and selling of such plots would not at all cause any detriment in fetching a fair price. It cannot at all be visualised in all situations that the division of the properly into various plots and consequent sale of those plots will fetch a price better than the one if the property is sold in one lot. Possible it is to visualise in certain situations that the selling of the property in one lot will be advantageous, in the sense of attracting the best of the price for the property to be sold. It all depends upon the location of the property and the purpose for which such a property is capable of being utilised.
26. In the case on hand, the property brought to sale is admittedly a piece of land measuring an extent of 79 cents with a factory building located thereon, surrounded on three sides by lands belonging, to individuals and on the one side a publicroad. From the description of the property, it appears that the suit property is capable of being utilised as a factory site, rather than house sites. If it is to be utilised as a site for factory purposes, division of certain portion of that properly into plots and selling them as such could have detrimentally affected the rest of the property, in the sense of such remaining part of the property not capable of being utilised as a site for factory purposes, which, in turn, would cause substantial injury to the judgment-debtor, in not procuring the best of a price for the property. That perhaps appears to be the reason why he was keeping mum and quiet all along without the emergence of any request from him for the sale of the suit property into plots towards the satisfaction of the decree.
27. Another signal factor that has to be taken no to of is that despite taking of so many adjournments of sale, at this instance, it was not a possible feature for him to sell any portion of the property by way of private negotiations towards the satisfaction of the decree. What is further worse is that the sale of the suit property never attracted bidders at all on occasions more than once, the consequence of which was that the Court was impelled to the necessity of gradually reducing the upset price from Rs. 5 lakhs to Rs. 3 lakhs. The possible reason for the least attraction of bidders in the Court auction sale of the suit property was that 'the litigious sequel at the judgment-debtor's instance, had 'scare' value in inhibiting intending buyers from coming forward with the best of offers' as aptly put by Krishna Iyer, J., in the case of Kayjay Industries v. Asnew Drun .
28. Top of all, the alarming factor is that the execution proceedings which commenced its career in the year 1974 never came to a grinding halt till upto this day and the judgment-debtor somehow or other wants to protract the execution proceedings, thus not enabling the decree-holder to realise the fruits of his decree. Therefore, it is clear that the executing Court did not go behind the decree in bringing a property, different from the one, as found described in the decree to sale and as such, there is no force in the contention of the judgment-debtor at there is misdescription of the property brought to sale in the sale proclamation, prejudicially affecting his interest. Further, considering the conduct of the judgment-debtor all along and also the inbuilt and into in is circumstances to be culled out from the facts of this case, I goes without saying that the executing Court fully applied its mind, taking into consideration the amount of the decree, that remains to be satisfied and other peculiar facts and circumstances of the case, in bringing the entirety of the suit property to sale and such an act cannot amount to bringing more extent of property for sale than what was necessary for the satisfaction of the decree.
29. Even otherwise, the so-called misdescription of the property as well as bringing more extent of property, than what is required, for purposes of satisfying the decree, to say, offending respectively Rules 64 and 66 of Order 21, C.P.C. cannot at all be construed as vitiating or nullifying circumstances rendering the sale itself invalid and if at all such factors can be termed as irregularities, which would be taken into consideration, in an application filed for setting aside the sale under Order 21, Rule 90, C.P.C., on the fact of the decision of the Supreme Court in the case of Dhirendra Nath v. Sudhir Chandra .
30. The primordial requisites necessary for setting aside a sale on ground of irregularity or fraud are adumbrated in Order 21, Rule 90 C.P.C., which reads as under:
90. Application to set aside sale on ground of irregularity or fraud:- (1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a ratable 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 mater is 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.
Explanation: 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 this rule.
31. The construction and interpretation of the salient and statutory provisions, as extracted above, came up for consideration in certain decisions of the High Courts as well as the Supreme Court of India. Some of 'he decisions, may be referred to, for the application of the enunciation of the principles thereof to the facts of the instant case.
32. In Satyanarayana Soni v. State of Andhra Pradesh (1987) 2 Cur.C.C. 118, it has been held:
Unless there is nexus between the inadequacy of price fetched and the irregularity or fraud in conducting the sale, the sale cannot be set aside.... Therefore, if a party, who has an interest in the property sold in execution of the decree is affected by such sale, he has to establish on facts proved to the satisfaction of the executing court that by reason of irregularity or fraud he sustained substantial injury and that injury has been resulted on grounds of material irregularity or fraud either in publishing the sale proclamation or conducting the sale.
33. In His Holiness Mahant Chathondosji Vau (Died) His Holiness Dioyadassan Rajendra Ramadasjee Varu v. The Board of Trustees, Tirumalai A.I.R. 1965 A.P. 335, it has been held:
Any material irregularities per se will not invalidate a sale. Such irregularities will have the effect of avoiding the sale only if the connection is established between them and the inadequacy of price realised at the sale....Inadequacy of price propriavigore would not result in avoiding the sales. There must be correlation between the damage suffered by the judgment-debtor and the material irregularity, complained of. If the inadequacy of the price is the result of factors other than the material irregularities complained of the proviso to Order 21, Rule 90(1) cannot come into operation.
34. In Radhey Shyam v. Shyam Bihari Singh , it has been held:
Rule 90 of Order 21 of the Code, as amended by the Allahabad High Court, inter alia, provides that no sale shall be set aside on the ground of irregularity or even fraud unless upon the facts proved the court is satisfied that the applicant has sustained injury by reason of such irregularity or fraud. Mere proof of a material irregularity such as the one under Rule 69 and inadequacy of price realised 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 has thus to be established between the inadequacy of the price and the material irregularity.
35. In Kayjay Industries v. Asnew Drums . Their
Lordships said thus:
Indeed, under the C.P.C., it is the Court which conducts the sale and its duty to apply its mind to the material factors bearing on the reasonableness of the price offered is part of the process of obtaining a proper price in the course of the sale. Therefore, failure to apply its mind to this aspect of the conduct of the sale may amount to material irregularity. Mere, substantial inquiry without material irregularity is not enough even as material irregularity not linked directly to inadequacy of the price is insufficient. And where a Court mechanically conducts the sale or routinely signs assent to the sale papers, not bothering to see if the offer is too low and a better price could have been obtained, and in fact the price is substantially inadequate, there is the presence of both the elements of irregularity and injury. But it is not as if the Court should go on adjourning the sale till a good price is got, it being a notorious fact that Court sales and market prices are distant neighbours. Otherwise, decree-holders can never get the property of the debtor sold. Nor is it right to judge the unfairness of the price by hindsight wisdom. Maybe, subsequent events not within the ken of the executing court when holding the sale may prove that had the sale been adjourned a better price could have been had. What is expected of the judge is not to be a prophet but a pragmatist and merely to make a realistic appraisal of the factors, and, if satisfied that, in the given circumstances, the bid is acceptable, conclude the sale. The Court may consider the fair value of the property, the general economic trends, the large sum required to be produced by the bidder, the formation of a syndicate, the futility of postponements and the possibility of litigation, and several other factors dependent on the facts of each case. Once that is done, the matter ends there. No speaking order is called for and no meticulous post mortem is proper. If the Court has fairly, even if silently, applied its mind to the relevant considerations before it while accepting the final bid, no probe in retrospect is permissible. Otherwise, a new threat to certainty of Court sales will be introduced.
36. For Rule 90 of Order 21, C.P.C., to come into operation, mere existence of ma terial irregularity or fraud in publishing or conducting the sale is not sufficient to set aside the sale; but what is further necessary is that such irregularity or fraud has caused substantial injury to the judgment-debtor. To put it otherwise, there must be nexus between material irregularity or fraud and the substantial injury suffered thereby.
37. I have already found that neither was there any irregularity much less material irregularity in bringing a larger extent of property than was necessary for sale for satisfying the amount of decree that remains due; nor was there any irregularity of misdescription of the property brought to sale in the sale proclamation, in the sense of there being no violations or refractions of either Rule 64 or Rule 66 of Order 21, C.P.C. Further, no material worth the name, had been placed by the judgment-debtor as to his having suffered any injury, much less substantial injury. The resultant position is that there is neither any material irregularity or fraud; nor was there any injury having been caused to the judgment-debtor on account of the impugned sale.
38. Even assuming for argument's sake that there was existence of material irregularity or fraud in the impugned sale, as contended by the judgment-debtor, since the judgment-debtor had not taken any such objection at any point of time during the course of elongated execution-proceedings, which was pending from 1974 onwards, he cannot be allowed to raise such an objection, after the impugned sale, on the face of the express and explicit provisions adumbrated in Sub-rule (3) of Rule 90 of Order 21, C.P.C. which is based on the salutary principle that waiver of the necessity for fresh proclamation necessarily implies a waiver of objection to any defect appearing on the face of the proclamation. Therefore, the objections covered by points 1 and 3 are of no consequence.
39. Now, the second objection may fall for consideration in the arena of discussion. This stem of objection is obviously having its root on Rule 69 of Order 21, which prescribes:
69. Adjournment or stoppage of sale:- (1) The Court may, in its discretion, adjourn any sale hereunder to a specified day and hour, and the officer conducting any such sale may in his discretion adjourn the sale, recording his reasons for such adjournment.
Provided that, where the sale is made in, or within the precincts of, the Court-house, no such adjournment shall be made without the leave of the Court.
(2) Where a sale is adjourned under Sub-rule (1) for a longer period than thirty days, a fresh proclamation under Rule 67 shall be made, unless the judgment-debtor contends to waive it.
(3) Every sale shall be stopped if, before the lot is knocked down, the debt and costs (including the costs of the sale) are tendered to the officer conducting the sale, or proof is given to his satisfaction that the amount of such debt and costs has been paid into the Court which ordered the sale. "(High Court Amendment : (Madras) : For Sub-rule (2) of Rule 69 substitute the following sub rule, namely. "(2) Where a sale is adjourned under Sub-rule (1) for a longer period than thirty days, there shall be fresh publication of the proclamation in the manner prescribed by Rule 67, unless the judgment-debtor contends to waive it or the Court otherwise orders." (13.3.1963).
40. Sub-rule (2), as extracted above, speaks of adjournment of sale for longer period than thirty days. If a sale is adjourned for a period beyond thirty days, then a fresh proclamation is necessary, unless the judgment-debtor contends to waive it. If a plain, nature and contractual meaning is given to the various words and phrases used in the said Sub-rule, it goes without saying that the period of thirty days cannot be anything, except one spell and the computation of the period of one spell of thirty days is to be reckoned from the date when the sale was adjourned last and not from the date when the sale was originally notified to take place in the sale proclamation.
41. In the case on hand, the sale was originally notified to take place 17.8.1983. But the sale was actually held on 28.9.1983. In between those two dates, there was one adjournment of sale on 17.8.1983 at the instance of the judgment-debtor, besides two other adjournments of sale, namely, on 14.9.1983 and 21.9.1983, as a result of the Presiding Officer of the Court availing of leave. Since the continuous spell of the period of thirty days, in between the adjournments of sale on two occasions, as a result of the Presiding Officer availing of leave, immediately preceding the date on which the impugned sale took place did not expire, there was no need to obtain the consent of the judgment-debtor for a fresh proclamation of sale to be put up and in such state of affairs, it goes without saying that there was any violation or refraction of Sub-rule (2) of Rule 69 of Order 21, C.P.C, inasmuch as the sale originally scheduled to take place as per the proclamation got adjourned at the instance of the judgment-debtor to another date which was very well within thirty days from the date of sale originally fixed.
42. Assuming the said Sub-rule had been violated or refracted, even then such violation cannot at all be construed as a factor vitiating the sale and if at all, the same can be construed as an irregularity, which can be raised as a ground in an application under Order 21, Rule 90, C.P.C., if so desired. As already stated by reason of mere irregularity, without substantial injury having been caused to the judgment-debtor, as a result of such an irregularity, a sale cannot be set aside and there being dearth of materials available on record as respects that aspect of the matter, in the instant case, the impugned sale has to be allowed to remain as it is. As such, this bone of contention has also to be rejected as of no merits.
43. In view of what has been stated above, this civil miscellaneous appeal deserved to be dismissed.
44. In the result, this civil miscellaneous appeal is dismissed with costs.