PETITIONER:
M. L. MUBARAK BASHA & ORS.
Vs.
RESPONDENT:
MUNI NAIDU
DATE OF JUDGMENT: 06/01/1997
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT
HEADNOTE
JUDGMENT
ORDER
Leave granted.
Heard the learned counsel for the parties.
This appeal by special leave arises from the Division Bench judgment of the Madras High Court, made in LPA No. 205/1995 on August 28, 1995. The appellant had filed a suit, viz., O.S. No. 69/1976 in the Court of Subordinate Judge, Thiruvanamalai for partition and separate possession of his 16/64 share in the plaint schedule property. A preliminary decree passed for partition was confirmed. Before the final decree was passed, the property at Item No.18 of the plaint schedule, namely, Saw Mill, was initially brought to sale between the parties, as per the directions of the Court; subsequently, there was a public auction thereof. In the public auction, the second respondent came to purchase the property for a sum of Rs.1,03,600/-. An application had been filed by the appellant under Section 47 of C.P.C. for setting aside sale. though several grounds had been raised, none of them was pressed. But one ground canvassed before the High Court and pressed for consideration before us is that the Commissioner had no power to fix the upset price in conducting the sale. Since this point was raised for the first time before the High Court, the Division Bench has rejected the same and confirmed the sale though it was upset by the learned Single Judge. Thus, this appeal by special leave.
It has been strenuously contended by the learned counsel for the appellants that in terms of the mandatory language used in Order XXI, Rule 66, sub-rule (2)(d) & (e), CPC, the Commissioner has no power to fix the upset price which is the judicial function of the Court. Therefore, it goes to the root of the matter. We have given opportunity to the learned counsel to place the necessary material before us in that behalf. Both parties have filed their record and also their affidavits. The only question is; whether the Commissioner or the executing Court can fix the upset price? Order XXI Rule 66 postulates thus:
"66. Proclamation of Sales by
public auction - (1) Where any
property is ordered to be sold by
public auction in execution of a
decree, the Court shall cause a
proclamation of the intended sale
to be made in the language of such
Court.
(2) Such proclamation shall be
drawn up after notice to the
decree-holder and the judgment-
debtor and shall state the time and
place of state, and specify as
fairly and accurately as possible -
(a) the property to be sold (or
where a part of the property would
be sufficient to satisfy the
decree, such part);
(b) the revenue assessed upon the
estate or part of the estate, where
the property to be sold is an
interest in an estate or in part of
an estate paying revenue to the
Government;
(c) any encumbrance to which the
property is liable;
(d) the amount for the recovery of
which the sale is ordered; and
(e) every other thing which the
Court considers materials for a
purchaser to know in order to judge
of the nature and value of the
property;
Provided that where notice of the
date for settling the terms of the
proclamation has been given to the
judgment-debtor by means of an
order under Rule 54, it shall not
be necessary to give notice under
this rule to the judgment-debtor
unless the Court otherwise directs:
Provided further that nothing in
this rule shall be construed as
required the Court to enter in the
proclamation of sale its own
estimate of the value of the
property, but the proclamation
shall include the estimate, if any,
given by either or both of the
parties.
(3) Every application for an order
for sale under this rule shall be
accompanied by a statement signed
and verified in the manner
hereinbefore prescribed for the
signing and verification of
pleadings and containing, so far as
they are known to or can be
ascertained by the person making
the verification, the matters
required by sub-rule (2) to be
specified in the proclamation.
(4) For the purpose of ascertaining
the matters to be specified in the
proclamation, the Court may summon
an person whom it thinks necessary
to summon and may examine him in
respect to any such matters and
require him to produce any document
in his possession or power relating
thereto.
Madras and Pondicherry amendment
reads - (i) In Sub-rule (1) for
"made" substitute "drawn up".
(ii) substitute sub-rule (2) as
follows:
2. The term of such proclamation
shall be settled in Court after
notice to the D.H. and J.D. except
in cases where notices have already
been served under Order XXI, Rule
64 and such proclamation shall
state the time and place of sale
and specify as accurately possible
- (a) the property to be sold, (b)
the revenue assessed upon the
estate or part of thee state where
the property to be sold is an
interest in an estate or part of an
estate paying revenue to the
Government, (c) any encumbrance to
which the property is liable, (d)
the amount for the recover of which
the sale is ordered, (e) the value
of the property as stated (i) by
the D.H. (ii) by the J.D., (f)
every other thing which the Court
considers material for a purchaser
to know in order to judge the
nature and value of the property."
A reading of the above provision would in unequivocal terms indicate that it is the function of the Court, while proclamation is drawn up, to fix the amount of the recovery for which the sale is ordered and also to specify such other particulars as are necessary in that behalf to be material for the purpose of conducting the sale. The value of the property given by the decree-holder - judgment-debtor and the upset price is to be fixed under the residue clause relating to writ rules made by the High Court. The learned Single Judge himself observed in his order that the Commissioner who has been examined as RW-3 had stated that he had fixed the sale of the property and the upset price at Rs.70,000/- as was ordered by the Court and the sixth respondent was the highest bidder in the said bid, viz., for Rs. 95,200/-. He had deposited the entire amount on the said date. It is seen that the executing Court appears to have given direction to the Commissioner not only to conduct the sale but also to fix the upset price at Rs. 70,000/-. In that view, there is no infraction of the mandatory language contained in Order XXI, Rule 66, CPC as the Commissioner had fixed the upset price not on his own but on the direction of the Court itself.
The appeal is accordingly dismissed. No costs.