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1995 DIGILAW 403 (KER)

Abdulla v. Syndicate Bank

1995-11-27

K.SREEDHARAN

body1995
Judgment :- K. Sreedharan J. When C.M.P. No. 1289/95 came up for orders, I heard counsel appearing on either side in detail. I am disposing of the revision petition. 2. Petitioner is the judgment debtor in O.S.46/89 on the file of the Subordinate Judge's Court, Kasaragod. That suit was filed by the first respondent bank on the basis of a mortgage executed by the petitioner and others. Mortgage was security for the money transaction with the Bank. When the mortgagors defaulted in repaying the money, Bank instituted the suit. The suit was decreed allowing the Bank to realise the money by the sale of mortgaged property. For getting the decree executed, the Bank filed E.P. 27/93. The decree holder brought the property for sale. Proclamation was settled under Order XXI Rule 66 of the C.P.C. At the first instance the upset price was fixed at Rs. 2,21,950/-. Subsequently the upset price was reduced to Rs.2 lakhs as per order in E.A. 76/94 dated 4-3-94. Still later the upset price was reduced to Rs. 1,75,000/- as per the Order in E.A. 210/94. It is conceded before me that the property could not be sold in public auction. The decree holder sought permission to purchase the property. Court below allowed the decree holder to bid the property in auction and ordered set off. That order is under challenge. 3. Main argument advanced by the learned counsel representing the judgment debtor is that when the mortgagee is to be allowed to bid the property sold in execution of the decree, the court should fix a reserve price. As regards the property mortgaged, if such a reserve price is not fixed under Order XXI Rule 72A, the mortgagee, decree holder cannot be allowed to purchase the property in the auction. 4. As per the provision contained in Order XXI Rule 72, no decree holder of a decree, in execution of which property is sold, shall bid the same without the express permission of the court. Thus a decree holder in a money decree can purchase the property brought to sale only with the permission of the court. Forgetting that permission, the court need not examine whether by the purchase of the entire property the decree debt will be wiped off or not. Thus a decree holder in a money decree can purchase the property brought to sale only with the permission of the court. Forgetting that permission, the court need not examine whether by the purchase of the entire property the decree debt will be wiped off or not. As per clause (1) of Rule 72-A of the Code, a mortgagee of property should not bid for or purchase property sold in execution of the decree based on mortgage, unless permission is granted by court. Before granting that permission to the mortgagee to bid, the court should fix a reserve price as regards the mortgagee. The reserve price so fixed should not be less than the amount then due under the decree. In other words, the reserve price for which the property can be purchased by the mortgagee should take in the principal amount, interest thereon and costs. When the mortgagee decree holder purchases the property, on getting the reserve price fixed, the sale consideration will go in discharge of the decree debt as proved in Clauses 2 and 3 of the Rule 72. Thus it is mandatory for getting the reserve price fixed for the mortgagee, decree holder, to purchase the property in court auction. 5. In the instant case, the decree is admittedly based on a mortgage. The mortgagee, decree holder, now wants to bid the property in auction in execution of the decree. Court below has not fixed a reserve price. In the absence of fixation of a reserve price, which should not be less than the amount due towards principal, interest and costs, the decree holder cannot purchase the property. When the mortgagee, decree holder„ in the instant case, the decree holder being the mortgagee, wants to purchase the property, he must purchase the same for the reserve price only as contemplated by Order XXI Rule 72-A of the Code. Since the Court below has not fixed the reserve price as per that Rule, the decree holder cannot be allowed to purchase the same. Executing court is directed to fix the reserve price in case the mortgagee, decree holder wants to bid it in auction as contemplated by Order XXI Rule 72-A of the C.P.C. within one month from the date of receipt of a copy of this order. While passing this order, the court should take into consideration the aspects contained in Rule 72-A (2). While passing this order, the court should take into consideration the aspects contained in Rule 72-A (2). If the court wants to fix a reserve price less than the amount due as per the decree towards for principal, interest and costs, the court must give sufficient reason for the same. These aspects have not been adverted to by the court below while passing the impugned order. So I set aside the order and allow the revision petition as indicated above.