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1969 DIGILAW 161 (KER)

Raman alias Raman Kunju v. KUDAVECHOOR, S. N. D. P. SAKHAYOGAM

1969-08-06

E.K.MOIDU, T.C.RAGHAVAN

body1969
Judgment :- 1. Three decisions of three learned judges of this Court on the question involved in this revision petition have been brought to our notice: one by one of us (Raghavan J.) in Sankaranarayanan Nair v. Paravoor Central Chitty Fund, Ltd. (1962 KLT. 623), another by Krishnamoorthy Iyer J. in Sandhavu v. The Catholic Syrian Bank Ltd. (C. R. P. No. 1626 of 1967 not reported) and the third by Madhavan Nair J. in Poulose v. Sankara Varrier (1969 KLT. 407) in that order chronologically. The first two decisions appear to take almost a similar view, and the third decision takes a contrary view. (At this stage we felt that this case should be heard by another Division Bench where Raghavan J. was not a party; but, after some discussion at the bar and after looking into all the three decisions, we were satisfied that there was no need for doing so.) The question is whether the court need put a valuation of its own in a sale proclamation under O. XXI R.66 (2) (f) of our Code of Civil Procedure. The question was considered in fair detail by the earliest of these decisions in Sankaranarayanan Nair's case; and three decisions of the Madras High Court, where a similar provision existed in the Code of Civil Procedure of that State, were also considered, one by Mack J., another by Ramaswami Gounder J. and the third by Govinda Menon J. Mack J. took the view that, where there was a wide divergence between the decree-holder's valuation and the judgment-debtor's valuation, it would be desirable for the court to have the property valued by an amin and to have such valuation also inserted in the proclamation. Ramaswami Gounder J. observed in the second case that there was nothing in O. XXI R.66 (2) which compelled the executing court to make any enquiry regarding the valuation of the property and give such value also in the proclamation of sale. Govinda Menon J. observed in the third case that by the enactment of the new clause (e) in O. XXI R.66 (2) it should be deemed that the residuary clause (f) was intended to cover only matters other than the market value: and clause (f) could not therefore reasonably be construed as including within its ambit any statement about the court's view regarding the market value. After considering these decisions, it was held in Sankaranarayanan Nair's case that since a discretion was given to the court in clause (f) to specify every other thing which the court considered material fora purchaser to know in order to judge of the nature and value of the property, the court would, in a case of wide disparity between the values given by the decree-holder and the judgment-debtor, do well to make some independent enquiry and fix a valuation so as to enable the intending purchasers to judge of the nature and value of the property proclaimed for sab. The language of clause (f) indicates a wide discretion to the court to include "every other thing" material for judging the nature and value of the property. If the values given by the decree-holder and the judgment-debtor are so very divergent, then they will not help the intending purchasers, but will only prevent them from judging the nature and value of the property even within reasonable margins. Hence, there is need in such a case to exercise the discretion of the court and insert its valuation too in the proclamation. The question was approached from a slightly different angle by Krishnamoorthy Iyer J. in Sandhavu's case. The learned judge proceeded on the basis that prior to the amendment of clauses (e) and (f) of R.66 (2) the court had to include a valuation of its own, and since that power or jurisdiction was not taken away by the amendment, the jurisdiction should still be subsisting. Krishnamoorthy Iyer J. also referred to R.64, under which the court has power to order the sale of a part of the property attached and for that purpose the court should have an idea of the price of the whole property so as to enable it to decide whether it should direct the sale of a portion only and if so, what portion. The third decision of Madhavan Nair J. does not appear to have considered the question at any length. Our learned brother merely said: "I am afraid no such enquiry is contemplated in law. Order XXI R.66 (2) (e) C. P. C. directs 'the value of the property as stated (i) by the (decree-holder and (ii) by the judgment-debtor' to be entered in the proclamation. Our learned brother merely said: "I am afraid no such enquiry is contemplated in law. Order XXI R.66 (2) (e) C. P. C. directs 'the value of the property as stated (i) by the (decree-holder and (ii) by the judgment-debtor' to be entered in the proclamation. If an enquiry to determine the value of the property is contemplated by law, there cannot be a direction to show the values given by both parties, in the proclamation. The very direction to show both the values is a sure indication that no enquiry on value of the property is to be had in execution." The effect of clause (f) does not appear to have been specifically considered. Probably, the same reasoning as was adopted by Govinda Menon J. of the Madras High Court that clause (f) was a residuary clause might be the result. We think it is essential that, in a case where there is wide disparity between the value given by the decree-holder and the value given by the judgment-debtor, the court should make some independent enquiry so as to enable it to get an idea regarding the value of the property. Under clause (f) of R.66 (2) the court has the discretion or power to specify every other thing, which it considers material for a purchaser to know in order to judge of the nature and value of the property. The purpose of the sale proclamation is obviously to attract intending purchasers so that there might be competitive bidding so as to secure a proper price for the property proclaimed for sale. If the values given by the two parties show such disparity as in the present case (the value given by the decree-holder is Rs. 3250/-, while the value given by the judgment-debtor is Rs. 47,000/-), the intending purchasers who want to purchase a property of a particular value will not get any idea regarding the value of the property proclaimed; and in such a case, it is incumbent on the executing court to specify every other thing the probable value of the property too which is material for the purchasers to know in order to judge of its nature and value. Otherwise the purpose of the proclamation will not be achieved. . In Sandhavu's case Krishnamoorthy Iyer J. directed the issue of a commission. Otherwise the purpose of the proclamation will not be achieved. . In Sandhavu's case Krishnamoorthy Iyer J. directed the issue of a commission. However, the learned judge took care to make it clear that objections to the commissioner's report should not be filed. In one of the cases of the Madras High Court, Mack J. held that an amin should go and fix the price. We would emphasise that the enquiry should not be a detailed enquiry, the purpose of the enquiry being only to ascertain within reasonable margins the value of the property and not to fix its actual value. What is contemplated is only some independent enquiry by the court not a detailed enquiry to enable it to get a reasonable idea of the value of the property which will give the intending purchasers an idea of the price within reasonable margins. What should be the mode of enquiry must be left to the executing court. The civil revision petition is therefore allowed; and the lower court is directed to make an enquiry as indicated in this judgment to enable it to fix the probable price of the property within reasonable margins. However, we do not pass any order regarding costs. Allowed.