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1965 DIGILAW 307 (MAD)

S. K. M. Mohamed Mustafa Maracayar v. Udaianachi Ammal

1965-09-17

M.ANANTANARAYANAN

body1965
Order:- This revision proceeding involves a question of some degree of interest, whether the permission to bid and set-off granted to the mortgagee decree-holder in a pending sale of the hypotheca, could be granted without specifying any special grounds therefor, or whether it should be conceded only with caution and under special circumstances. The facts are not in dispute. The revision petitioner is the judgment-debtor who opposed the grant of the permission to bid and set-off in this case. The respondent is an assignee mortgagee decree-holder, and she has now obtained this permission. The Court overruled the objection of the judgment-debtor, and granted permission in a cryptic order, in which no special grounds are set forth. However, it seems to be a fact that the mortgagee decree-holder has been attempting to realise the debt by sale of these properties on several occasions, and that the last time that the sale was held, the sale was unsuccessful. Certain very relevant aspects of this situation have been the subject of comment by Krishnaswami Naidu, J., in Varadarajulu Pillai v. Gendapodi Nanniar1 . The learned Judge referred to and followed a very early decision of the Calcutta High Court in Seonath Doss v. Janaki Prasad Singh2, and also made reference to the observations of the Judicial Committee in Mira Rowther v. Raghunatha Gopalar3, and of Schwabe, C.J., in Raghavachariar v. Murugesa Mudaliar4 . All these authorities emphasise the broad principle that caution should be exercised in granting leave to bid and set-off to the decree-holder, and that where the permission to bid and set-off is granted to the mortgagee, that discretion should be exercised with consider -able care; instances of that kind should be scarce and not liberal. In the present case, the facts are incontrovertibly established that the mortgagee decree-holder has not been able to realise the debt, from January, 1963, that the mortgage is of the year, 1937, and that there was a last one unsuccessful sale, on a prior occasion. Under those circumstances, I do not think that it is necessary to interfere in revision with the order of the Court below, granting leave to bid and set-off. But I must reiterate the principle emphasised in the catend of cases that I have referred to namely, that such permission should be cautiously granted, and after due enquiry into all attendant circumstances. But I must reiterate the principle emphasised in the catend of cases that I have referred to namely, that such permission should be cautiously granted, and after due enquiry into all attendant circumstances. Since it is not a matter of course, but a discretion to be judiciously exercised, it is certainly desirable that the order should specify the grounds on which the permission has been granted, particularly where the objections thereto have been overruled. There are, however, one or two other special features of this case, upon which I desire to comment before dismissing the revision. The first is that the hypotheca appear to be extensive in extent, and the case of the judgment debtor is that they are very valuable. In the light of that pleading it is certainly desirable that there should be due publicity, before the sale is actually held. The second feature is that, in accordance with Order 21 to negotiate for a private sale of the property to satisfy the mortgage debt, before the sale is finally held and rights are created in a third party purchaser, or the decree-holder succeeds in being the highest bidder. I direct that, in view of the facts of this case, such an opportunity might be given to the judgment-debtor, at any time on or before the actual date of sale. If the judgment-debtor produces such an intending purchaser who is willing to deposit the amount of the debt due to the mortgagee, an opportunity should be given for making the deposit and the sale should be held only if this attempt fails. This revision is accordingly dismissed. The parties will bear their own costs. V.S. ----- Revision dismissed.