Ramasamy Gounder vs Lakshmi and Others

K.M. Natarajan, J.—This revision is directed by the judgment-debtor against the order passed by the Sub-Judge, Erode, in E.P No. 80 of

1985. The facts which are necessary for the disposal of this revision are as follows. The respondents-decree-holders obtained a decree in O.S.

376 of 1983 for recovery of a sum of Rs. 25,365 with future interest and cost. They filed the petition for execution in E.P.80 of 1985 for

attachment of the petition mentioned property under Order 21, rule 54, C.P.C. and also for sale of the property after sale proclamation under

Order 21, rule 66, C.P.C. for recovery of Rs. 29,730-15. The said application was resisted by the revision petitioner (Judgment-debtor) and in

the counter it is stated that the decree holders have valued the property at Rs. 35,000, which is quite low as the property is irrigated by

kalingarayan channel and that the property is worth about Rs. 5 lakhs. The Amin fixed the value of the property at Rs. 3 lakhs while effecting

attachment of the property. The under-valuation by the respondents herein is improper and contrary to the existing market value which would

cause irreparable loss and hardship to the revision petitioner if accepted by the Court.

The Subordinate Judge passed an order to the effect that the upset price of the property attached on 27.4.1985 is fixed at Rs. 3 lakhs and the

property was directed to be proclaimed and sold on 17-9-1987 after noting the value of the decree holders, the amin and the judgment debtor in

the sale proclamation. Aggrieved by the same, this revision is filed.

The learned counsel for the revision petitioner, Mr. Masilamani, submitted that the entire property even as per the upset price fixed by the Court

below is worth Rs. 3 lakhs, on the basis of the amin''s report, that the entire property should not be sold for recovery of Rs. 29,730-15, and

instead the court ought to have ordered sale of that portion of the property which would be sufficient to satisfy the decree debt as contemplated

under Order 21, Rule 64, C.P.C. According to the learned counsel, instead of selling the undivided half of the petition mentioned property which

comes to Rs. 1.12.5 hectares (2-1/2 acres) a portion of the property which would be sufficient to satisfy the decree debt could be sold. Further,

by noting the low value given by the decree holder it will create confusion in the minds of the prospective purchasers regarding the real and correct

value of the property. On the other hand, the learned counsel for the respondent, Mr. A.K Kumara-swami, submitted that the revision petitioner

has not put forth the real contentions in his counter and the only objection raised is about the value of the property to be notified and in the instant

case, the court below rightly directed to note the value given by the decree holders, the judgment debtor as well as the amin and fixed the upset

price at Rs. 3 lakhs, which was estimated by the amin and as such no interference is called for.

The learned counsel for the revision petitioner, Mr. Masilamani, invited my attention to various decisions in support of his contentions and also

relevant provision of 0.21, R. 64, C.P.C. 0.21, R 64, C.P.C. is to the effect that any court executing a decree may after notice to the decree

holder and judgment debtor, order that any property attached by it and liable to sale or such portion thereof as may seem necessary to satisfy the

decree, shall be sold and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to

receive the same. In Takkaseela Pedda Subba Reddi Vs. Pujari Padmavathamma and Others, it was held-

It is manifest that where the amount specified in the proclamation of sale for the recovery of which the sale was ordered is realised by sale of

certain items, the sale of further items should be stopped. This, in our opinion, is the logical corollary which flows from 0.21, R.64 of the Code.

Later, in the course of the judgment, it was observed-

The words ''necessary to satisfy the decree'' hardly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale

proclamation. In other words, where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient

to satisfy the decree, no further sale should be held and the Court should stop at that stage.

Again it was observed:-

The fact that the judgment debtor did not raise an objection on this ground before the executing court is not sufficient to put him out of court

because this was a matter which went to the very root of the jurisdiction of the executing Court to sell the properties and the non-compliance of the

provisions of 0.21, R.64, of the Code was sufficient to vitiate the same.

In Jyotish Chandra Rakhit Vs. Smt. Parbati Bala, it has been held:

C.P.C. (1908) 0.21 R.66 (Calcutta), 90-Sale proclamation-Value of property-fraud on Court -Court''s carelessness in accepting low value-Real

value more than 10 times the value put on sale proclamation by decree holder-Court accepting low value without verification-Sale in execution-can

be set aside on grounds of fraud by decree-holder on court and also carelessness of court in approving sale proclamation. (Head-note)

That was a case where it was found out that the real value of the property was more than ten times the value given by the decree holder and the

Court accepted the value given by the decree holder and proceeded with the same. In the circumstances it was held that the sale was liable to be

set aside on the ground of fraud on the part of the decree holder on court and also carelessness of court. In the same effect, it was held in the

earlier decision in Sisir Kumar Mukherjee and Others Vs. Kanyalal Jhewar and Others, . In Nagendra Iyer v. Varadaraja 77 L.W. 676= AIR

1965 Mad. 198, it was held that since the proclamation contained only the valuation given by the decree holder and the said valuation is grossly

inadequate, that there was a clear intention on the part of the decree holder to conceal from bidders the true valuation and dissuade them from

bidding could be inferred."" Consequently it was held in that case, that the sale was liable to be set aside as vitiated. But, that is not the case here. In

the instant case, the valuation of the judgment debtor, the decree-holder and the value given by the amin were mentioned. Even in that case, the

judgment of Govinda Menon, J. in Srinivasan v. Andhra Bank Ltd 61 L.W. 852=1948-2-M.L.J. 569=A.I.R. 1949 Mad. 398.,. was relied on,

wherein it was held that ''where the proclamation contained the value of the property as stated by the decree-holder and the judgment debtor,

there was no duty cast on this Court by the clause (e) of 0.21, R.66(2), C.P.C. to fix its own valuation and to insert it in the proclamation of sale"".

Thus, the said judgment does not help the case of the revision petitioner with regard to the contention that the decree-holder has given a grossly

inadequate valuation and that on that ground alone the order of the court below is to be set aside. My attention was drawn to the unreported

decision rendered by Sengottu-velan, J. in Gurusami Nadar v. Prabakaran C.R.P. 4151 of 1981, where the learned Judge considered all the

decisions and finally relying on the decision of the Supreme Court in Takkaseela Pedda Subba Reddi Vs. Pujari Padmavathamma and Others, held

that the lower court is not correct in ordering the entire property mentioned in the execution petition for sale even though the sale of a fraction of

the property is sufficient to realise the decree amount, in view of 0.21, R.64, C.P.C..Even in that case, the learned Judge did not accept the

contention that the judgment debtor was put to loss on account of the low valuation given by the decree-holder in the sale proclamation. Applying

the ratio laid down in the above decisions to the facts of the case, since the amount to be realised by way of execution is only Rs. 29,730.15, and

the value of the undivided half share of the judgment-debtor which is now brought to sale, is estimated at Rs. 3 lakhs on the basis of the amin''s

report, I am of the view that the entire half share of the judgment debtor need not be put up for sale. Since it is an undivided share, there may not

be any purchaser if the sale of l/8th share is ordered as contended by the learned counsel for the revision petitioner, Mr. Masilamani. In the

circumstances of the case, I feel that the court below can be directed to proclaim and sell in respect of l/4th share of the petition mentioned

property, i.e., half share of the judgment debtor in the said property and the valuation can be modified to the effect and the sale proclamation can

be issued only in respect of undivided l/4th share of the petition mentioned property instead of undivided half share. In the result the revision is

partly allowed and the court below is directed to order, proclaim and sell in respect of l/4th share of the petition mentioned property instead of

undivided half, after noting the proportionate value given by the Amin, the decree holder and the judgment debtor in the said proclamation.

However, if the undivided l/4th share does not fetch the price to satisfy the decree amount, the decree holder is at liberty to bring the remaining

l/4th share also subsequently by making necessary application to the executing court. In the circumstances of the case, there will be no order as to

costs.