Somisetty Ganga Ram, Nizamabad District v. P. Ramalingam, Nizamabad District
2007-02-13
GOPALA KRISHNA TAMADA
body2007
DigiLaw.ai
Judgment :- This revision is directed against the docket order in E.P.No.30 of 2005 in O.S.No.85 of 2003, dated 05-09-2006 on the file of the Court of the Senior Civil Judge, Kamareddy, whereby learned Senior Civil Judge ordered for issuance of warrant of proclamation of sale of E.P. schedule property i.e. house, and publication in Vaartha daily newspaper of Nizamabad District edition. 2. Brief facts are that the revision petitioner is the judgment-debtor and the respondent is the decree-holder. The respondent instituted the suit being O.S.No.85 of 2003 against the petitioner for recovery of money on the foot of a promissory note. Though the petitioner contested the said suit, the same was decreed. Despite the fact that there was a decree against the petitioner, he has not chosen to honour the said decree. Hence, the respondent filed E.P.No.30 of 2005 in execution of the said decree. Though notice was sent to the petitioner in the said E.P., he has not chosen to pay the said amount and hence, a notice i.e. to bring the properties, which were under attachment, to be sold and proceeds to be paid to person entitled, was issued. Thereafter, the executing Court ordered for issuance of warrant of proclamation of sale of E.P. schedule property i.e. house, and publication in Vaartha daily newspaper of Nizamabad District edition. The petitioner challenges the said order stating that the proclamation of sale published in Vaartha daily newspaper of Nizamabad District edition, is not in conformity with the provisions of Order XXI, Rule 66 of the Code of Civil Procedure, 1908 (for short, ‘the Code’). 3. Heard learned counsel for the petitioner, learned counsel for the respondent and perused the impugned order and other material on record. 4. Learned counsel for the petitioner vehemently contended that though the petitioner produced the market value certificate of the property in question before the executing Court, the respondent has not mentioned the value of the property furnished by the petitioner in the proclamation of sale published in Vaartha newspaper and the same is hit by the second proviso to Order XXI, Rule 66 of the Code.
In support of his contentions, learned counsel has drawn my attention to the provisions of Order XXI, Rule 66(2)(a)(e) of the Code and the second proviso to Rule 66 of Order XXI of the Code as well as the paper publication pertaining to the proclamation of sale published in Vaartha daily newspaper. 5. On the other hand, learned counsel for the respondent opposed the said submissions stating that the said proclamation is in conformity with Order XXI, Rule 66 of the Code and the order of the executing Court is perfectly justified and needs no interference. 6. In view of the rival contentions, it is apt to refer to the provisions of Order XXI, Rule 66(2)(a) & (e) of the Code. “66. Proclamation of sales by public auction.— (1)………………………………….. (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 sale, 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)…………………………………….. (c)……………………………………… (d)………………………………………. (e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property: PROVIDED…………………… 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.” 7. Admittedly, the suit is one for recovery of money, which was decreed and the decretal amount as on the date of proclamation was estimated at Rs.12,94,503/-. It is contended by the learned counsel for the petitioner that according to sub-rule (2) of Rule 66 of Order XXI of the Code, the Court has to issue a notice to both the decree-holder as well as the judgment-debtor before such proclamation is made and the said proclamation shall state the time and the place of sale and also the details of the property to be sold. A reading of the proclamation of sale published in Vaartha daily newspaper would make it clear that the said requirements are complied with. 8.
A reading of the proclamation of sale published in Vaartha daily newspaper would make it clear that the said requirements are complied with. 8. Coming to the issue of compliance of the mandate contained in clause (e) of sub-rule (2) of Rule 66 of Order XXI of the Code, it is clear that the upset price of the property has not been mentioned in the proclamation of sale published in the newspaper enabling the prospective purchaser to know the value of the property, which is brought for sale, whereas the decretal amount alone was mentioned therein. When the decretal amount alone is mentioned in the publication, there is every possibility for the intending purchaser to offer his bid for the decretal amount only, in which event the judgment debtor may suffer huge loss. 9. According to the learned counsel for the petitioner, the moment the petitioner was served with a notice about the proclamation, he brought to the notice of the executing Court, the value of the property, by producing the market value certificate and according to which, value of the property in question is about Rs.33,19,875/-. In fact, in the second proviso to Order XXI, Rule 66 of the Code, it is clearly stated that the said proclamation shall also include the estimation, if any, given by either or both of the parties. It is thus clear that in any case, when a proclamation is made, the Court shall make a mention of the valuation of the property as declared by the decree-holder as well as the judgment debtor. 10. Further, in any event, if the decree-holder fails to furnish the valuation of the property, the executing Court shall make a mention of the valuation of the property given by the judgment-debtor in the proclamation of sale, as the proceedings under Order XXI, Rule 66 of the Code are more useful to the judgment-debtor than to the decree-holder, as it is well known that the decree-holder always tries to under-value the property whereas the judgment-debtor is interested in getting good price for the property.
It may also be mentioned here that whenever the Court so directs, such proclamation shall also be published in a local newspaper, as provided under Order XXI, Rule 67(2) of the Code, the Court shall direct the decree-holder to make a mention of the valuation of the property declared by him as well as the judgment-debtor in the proclamation of sale published in newspaper. If for any reason, the decree-holder fails to furnish/mention the valuation of the property, the Court shall invariably direct the decree-holder to make a mention of the valuation of the property given by the judgment-debtor in the proclamation of sale published in the newspaper, so that there may not be any unfair deal or bid in the auction of the property for a lesser value than the original value of the property that is brought for sale. 11. Coming to the case on hand, as already observed, the judgment-debtor even prior to the order of proclamation was made, furnished certificate with regard to valuation of the property brought for sale, but the proclamation of sale published in newspaper, admittedly does not contain the valuation of either of the parties. It contained only the decretal amount as on the date of proclamation. When the decretal amount alone is mentioned in the proclamation of sale, there is every possibility for the intending purchaser to offer his bid for the decretal amount only, in which event the judgment-debtor may suffer huge loss. Had the proclamation of sale contained the valuation of the judgment-debtor it could have become the upset price being the highest, in which case, the property would fetch higher price. Therefore, this Court is of the considered view that non-mentioning of the value of the judgment-debtor in the proclamation of sale, goes to the very root of the sale, which ultimately vitiates the sale. 12. On the above analysis, this Court is of the view that the order impugned is liable to be set aside. 13.
Therefore, this Court is of the considered view that non-mentioning of the value of the judgment-debtor in the proclamation of sale, goes to the very root of the sale, which ultimately vitiates the sale. 12. On the above analysis, this Court is of the view that the order impugned is liable to be set aside. 13. Accordingly, the revision is allowed and the order of proclamation made in E.P.No.30 of 2005 in O.S.No.85 of 2003, dated 05-09-2006 on the file of the Court of the Senior Civil Judge, Kama Reddy, is set aside and the executing Court is directed to issue a fresh proclamation of sale in consonance with the provisions of Order XXI, Rule 66 of the Code and also in the light of the observations made above.