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2001 DIGILAW 776 (AP)

V. Guru Bhushanam Naidu v. Durga Financiers

2001-07-25

B.S.A.SWAMY

body2001
B. S. A. SWAMY, J. ( 1 ) AGGRIEVED by the order of the 1st additional Junior Civil Judge, Chittoor made in E. A. No. 18 of 2001 in O. E. P. No. 252 of 2000 dated 12-2-2001, wherein the additional counter filed by the Judgment- debtor in the E. P. was rejected, the present revision is filed by the Judgment-debtor. ( 2 ) HEARD the learned Counsel on both sides. The respondent obtained a Money decree in O. S. No. 6 of 1998 on the file of the 1st Additional Junior Civil Judge on 18-1-2001. Thereafter, he filed O. E. P. No. 252 of 2000 for realization of an amount of Rs. 1,11,088. 00 by way of attachment of the schedule mentioned properties and putting the same to auction. In the E. P. the respondent-Decreeholder seemed to have valued the property at Rs. 5 lakhs. Thereafter, the petitioner-Judgment-debtor filed a counter on 27-11-2000 by taking the usual plea that the property does not belong to him and that the properties stand in the name of his wife, that he has no saleable interest in his favour, and hence no orders need be passed for putting the schedule properties to auction. Thereafter, at the instance of the Court, Court Amin valued the property at Rs. 7 lakhs. Before issuance of the proclamation of sale, the petitioner filed an additional counter stating that as per the valuation certificate given by the Sub-Registrar, Chittoor the value of the building is Rs. 34,54,000. 00 and the market value of the building is more than Rs. 40,00,000. 00, but the Decreeholder with a mala fide intention got mentioned the value of the property at Rs. 5 lakhs. The Junior Civil judge dismissed the said additional counter. In other words, he refused to take additional counter on file. ( 3 ) ORDER 21 Rule 66 CPC deals with the issuance of proclamation of sale by public auction. Apart from giving the particulars mentioned in Rule 66 under second proviso to Order 21 Rule 66 (2) CPC, the Court is at liberty to fix its own estimate of the value of the property. The proclamation shall include the estimate of the property if any given by either or both of the parties. Apart from giving the particulars mentioned in Rule 66 under second proviso to Order 21 Rule 66 (2) CPC, the Court is at liberty to fix its own estimate of the value of the property. The proclamation shall include the estimate of the property if any given by either or both of the parties. It is useful to extract the said proviso:"provided further that nothing in this rule shall be construed as requiring 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. " ( 4 ) FROM this it is evident that while the court is not under an obligation to give its estimate of the value of the property, discretion is given to the Court to get the property valued. But the proclamation shall contain the values of the property given by either of the parties or both the parties. From this it is evident that both the Decreeholder as well as the Judgment-Debtor are entitled to estimate the value of the property and the same should be mentioned in the sale proclamation. But that does not mean that the Court is powerless in confirming the auction, if the property does not fetch the estimated value of the property given by the judgment-debtor. The estimate of the value given in the sale proclamation gives a rough idea to the intending purchasers before participating in the auction. Sufficient safeguards have been provided in the C. P. C. to safeguard the interests of the decreeholder as well as the judgment-debtor. ( 5 ) AS far as the decreeholder is concerned, under Order 21 Rule 72 CPC he can seek permission of the Court to participate in the auction and purchase the property in the "public auction. This is specifically intended to see that the property is not sold for throw away price in collusion with the Judgment-debtor. Likewise under rule 83 CPC at the time of conducting the sale, if the judgment-debtor feels that the property is not fetching the real value, he can file an application seeking postponement of the sale to enable him to satisfy the decree either by selling the property through private negotiations or otherwise. Likewise under rule 83 CPC at the time of conducting the sale, if the judgment-debtor feels that the property is not fetching the real value, he can file an application seeking postponement of the sale to enable him to satisfy the decree either by selling the property through private negotiations or otherwise. That is the reason why in the second proviso of Order 21 rule 66 (2) CPC, a mandatory provision is made to the effect that the value of the property estimated both by the Decree holder as well as the Judgment-debtor should be given in the proclamation, so that at a future date either of the parties may not try to drag on the proceedings by taking untenable pleas with regard to sale consideration, that has been offered in the public auction. This being the legal position the Judgment-debtor is entitled to give his own estimate of the value of the property that is being brought to auction. Hence the judgment-debtor is perfectly justified in filing the additional counter. But the Court below dismissed his application on the ground that the plea taken by the Judgment-debtor in the counter runs contrary to the plea taken by him in the additional counter and the stand taken by the Judgment-debtor is irreconcilable and self-contradictory and the same is impermissible in law. I do not know from where the officer has got this impression. It is always open to the parties to take inconsistent stands in support of their pleas and are entitled to get the relief on the basis of any of the contentions or pleas taken by them in the pleadings. Hence the Court below gravely erred in dismissing the additional counter on the ground of irreconcilability of the stands taken by the petitioner and the same cannot be sustained in law. In fact the word to be used is "the additional counter is rejected" rather than the words used by him as "dismissed", because there is no petition before him to pass any order either accepting or dismissing the same. The petitioner only tried to take the additional plea by filling a counter. If the court does not want to permit him to file the additional counter, the words used should be rejected but not dismissed, as has been done by the learned Judge. The petitioner only tried to take the additional plea by filling a counter. If the court does not want to permit him to file the additional counter, the words used should be rejected but not dismissed, as has been done by the learned Judge. ( 6 ) ACCORDINGLY the order of the Court below is set aside and E. A. No. 18 of 2001 is allowed and the Court below is directed to mention the value given by the petitioner-Judgment-debtor also in the sale proclamation. ( 7 ) DURING the course of arguments, it came to light that orders were passed on this application on 12-2-2001 and that a revision petition was filed in April, 2001, and this court did not pass any orders staying further proceedings in the E. P. But unfortunately the officer seemed to be adjourning the matter at the request of the Counsel for the petitioner in the lower Court on his representation that he filed a revision petition in the High Court. It is made clear that as long as the Superior court won t pass any orders restraining the inferior Court, the presiding officer concerned is expected to discharge his judicial function without being obsessed with the fact that an appeal or revision is filed in the appellate Court or revisional court. I hope and trust that this order will send the required message to the judicial officers working in the State and they will discharge their judicial functions not only in furtherance of the cause of justice, but also in seeing that the fruits of the Decree are realized by the Decreeholder at the earliest possible time, which he had obtained after going round the Courts for decades. ( 8 ) THE Civil Revision petition is accordingly allowed. No costs.