A. Jayathilakam and Others vs S. Dhanasekaran

Thanikkachalam, J.—This revision is directed against the order passed in R.E.A. No. 788 of 1992 in R.E.P. No. 177 of 1989 on the file of

the Additional Subordinate Judge, Salem. The petitioner herein is the judgment-debtor. The respondent/ decree-holder obtained a decree against

the judgment-debtor in the suit O.S. No. 169 of 1983. The decree is dated 17.3.1989. The execution petition was filed on 11.9.1989. The

property was brought to sale on 15.10.1992 and there was no bidder. The decree-holder filed R.E.A. No. 788 of 1992 under Order 21, Rule 72

of the Code of Civil Procedure, for permission to bid and set-off, and permission was granted by the executing court. It is against that order, the

present revision is filed by the judgment-debtor.

Before this Court, the learned Counsel appearing for the petitioners submitted that the executing court was not correct in granting permission to

the decree-holder to bid and set-off in the second sale. According to the learned Counsel, in view of the decision reported in Venkitammal and

Another Vs. Janaki Ammal, , permission to bid and set-off should be granted to the decree-holder only at the time when the property was brought

to sell for third time. As against this decision, the learned Counsel appearing for the respondent/ decree-holder relied upon a decision of this Court,

rendered by Kailasam J. (as he then was) in Sivathi Ammal Vs. Arulayee Ammal and Others, , wherein it was held that absence of any bidders in

prior two sales cannot be a condition precedent, for granting permission to bid and set-off to the decree-holder. It was, therefore, submitted that

according to the facts, arising in the present case, after giving notice to the judgment-debtor, after hearing the counsel appearing for the judgment-

debtor and considering the other circumstances, the court granted permission to the decree-holder to bid and set-off in the second sale. The

learned Counsel further pointed out that in view of the provisions contained in Order 21, Rule 72 of the Code of Civil Procedure, no condition

precedent can be imposed before granting permission to bid and set off to the decree-holder.

I have heard the rival submissions. The fact remains that in the present case, the property was brought to sale for the first time on 15.10.1992

and there was no bidders. Then the property was auctioned for second sale. In the meanwhile the decree-holder filed R.E.A. No. 788 of 1992

under Order 21, Rule 72 of the CPC for permission to bid and set-off. The permission was granted by the executing court, after notice to the

judgment-debtor, after hearing the counsel for the judgment-debtor and considering the circumstances under which, the application under Order

21, Rule 72 of the CPC was filed.

In the case of Venkitammal and Another Vs. Janaki Ammal, , the learned Judge of this Court (as he then was) has held as under:

Notice should have been issued to the judgment-debtor before the permission to bid and set-off was granted to the decree-holder, and the decree

holder should not have been granted the permission to bid and set-off even in the first sale without there being any special circumstances in the case

and that such permission is erroneous. The leave obtained could not enure to the decree-holder even on the first occasion of sale and he can avail

of the leave granted by the lower court only on the third occasion if there are no bidders on two consecutive sales.

A similar question came up for consideration before this Court subsequently in the case of Sivathi Ammal Vs. Arulayee Ammal and Others, ,

wherein this Court while considering the provisions under Order 21, Rule 72 of the Code of Civil Procedure, distinguished the abovesaid decision

of this Court rendered in Venkitammal and Another Vs. Janaki Ammal, , in the following manner:

The learned Counsel for the petitioner also brought to my notice a recent decision of this Court in Venkitammal and Another Vs. Janaki Ammal,

where Ramanujam, J. referred to the decision in B. Susila and Another Vs. Saraswathi Ammal and Others, , where it was held that a court fixing

an upset price is not under an obligation to issue notice of fixation of upset price or of alteration thereof to the judgment-debtor and observed that

the rationale of that decision cannot be applied to the case where the decree-holder has been given permission to bid in the first place contrary to

the established practices. The learned Judge proceeded to observe that the decree-holder should not have been granted permission to bid and set

off even in the first sale, without there being any special circumstance in the case. The learned Judge does not rule out permission being granted on

the first occasion itself if there are special circumstances. It is a rule of caution that normally leave should not be granted on the first occasion

because the court will have an opportunity to know the facts about the nature of the bid, the clause of the property etc., which would enable it to

decide whether it should grant permission to the decree-holder to bid and set off, or not. But this decision cannot be understood as laying down

that if a court, after having exercised caution and satisfied itself that it would be advantageous to the judgment-debtor to grant permission to the

decree-holder to bid and set-off, a sale should be found to be illegal, as the decree-holder had been given permission to bid and set off on the first

occasion itself.

According to the facts arising in Venkitammal and Another Vs. Janaki Ammal, , the permission to bid and set-off was granted in the first sale

itself without notice to the judgment-debtor. But according to the facts arising in the present case, on the first sale, there were no bidders and leave

was granted on the second occasion after taking into account the adequacy of the upset price fixed and after giving notice to the judgment-debtor

and after hearing him. Therefore, on facts, the decision reported in Sivathi Ammal Vs. Arulayee Ammal and Others, , applies on all fours, to the

facts of this case. The facts arising in Venkitammal and Another Vs. Janaki Ammal, are different from the facts arising in the present case.

Therefore, that decision will not be applicable to the facts of this case.

Further, a plain reading of Order 21, Rule 72(1) of the CPC would go to show that no condition precedent can be imposed before granting

leave to bid and set-off to the decree holder. Order 21, Rule 71(1) of the CPC runs as under:

Decree-holder not to bid for or buy property without permission:

(1) No holder of a decree in execution, of which property is sold shall, without the express permission of the court, bid for or purchase the

property.

Therefore, following the decision reported in Sivathi Ammal Vs. Arulayee Ammal and Others, and considering the facts arising in this case, and on

a plain reading of Order 21, Rule 72(1) of Civil Procedure Code, I uphold the order passed by the Execution in R.E.A. No. 788 of 1992.

Accordingly, there is no merits in this revision.

Hence, this civil revision petition is dismissed. The execution court is directed to proceed with further proceedings in the execution petition.

There will be no order as to costs.