V.A.S. Yellappa Naidu vs G. Venugopal Naidu

Ramaswami, J.—These are three matters in which the first two applications wherein interim stay had been granted are coming up for final

order and the third civil revision petition is coming up for admission along with the civil miscellaneous petition for grant of stay.

The point taken in all these three matters is the same viz., whether the lower Court''s notifying in the sale proclamations the decree-holder''s

valuation and the judgment-debtor''s valuation but without endeavouring to fix its own valuation, even though naturally these contending valuations

differ, constitute an error of jurisdiction inviting interference in revision.

There is conflict of decisions, as pointed out in the AIR Commentaries on the C. P. Code, 5th Edn., Vol. II, p. 2461, as to whether under this

rule a Court is under a duty to state its own estimate of the value of the property to be sold in the sale proclamation. This High Court in Srinivasan

v. Andhra Bank Ltd., AIR 1949 Mad 398 (A); Thiruvengadaswami Aiyangar Vs. Govindaswami Udayar and Others, (B) S. K. Veeraswami Pillai

Vs. Kalyanasundaram Mudaliar and Others, (C) Thiruvengadasami Iyengar Vs. Govindasamy Udaiyar and Others, and the High Court of

Allahabad in Md. Said Khan Vs. Md. Abdus Sami Khan and Another, , have held that the Court is under no such obligation. On the other hand, it

has been held by the High Court of Patna : Raghunath Singh v. Hazari Sahu, AIR 1917 Pat 381 : 2 Pat LJ 130 (FB) (F); Luchi Rai v. Raghubir

Dube, AIR 1918 Pat 372 (G) Damrupat Singh and others Vs. Rameswar Singh ; (See Suraj Narain Chaudhary Vs. Maharajadhiraja Kumar

Bisheshwar Singh and Others, - Valuation to be determined on the existing materials'' on record as also by the High Courts of Calcutta ( (Kumar)

Pashupati Nath Maliah and Another Vs. Bank of Behar, Ban Behari Chatterji and Others Vs. Bhukhan Lal Choudhury, ; New Birbhum Coal Co.,

Ltd. Vs. Surendra Nath Laik and Others, Ramessur Prasad v. Rai Sha Kissen, a Cal WN 257 (M) etc.) (But see Kashi Prashad Singh v. Jamna

Prasad Sahu, ILR 31 Cal 922 (N)-Court not required to make an investigation), and Rangoon and the Chief Court of lower Burma that it is the

duty of the Court to enter in the sale proclamation its own estimate of the value of the property.

The Bombay High Court has held in a decision, Charandas Vasanji Vs. Dossabhoy Maganlal, that it is not necessary in every case to value the

property to be sold and to state the value in the sale proclamation; but the Court may, if it thinks fit, do so. But in Sitabai Rambhau Marathe Vs.

Gangadhar Dhanram Marwadi, , it was held by the same High Court that the Court is bound to hold an inquiry as to the value of the property and

state the value in the sale proclamation. Opinion in the Nagpur Judicial Commissioner''s Court is divided, AIR 1930 191 (Nagpur) . Though, as

seen above, the Calcutta High, Court holds that it is the duty of the Court to enter in the sale proclamation its own valuation of the property to be

sold, it has also been held by that Court that in exceptional cases, the Court will be justified in not attempting to give a valuation of its own and in

confining itself to stating the values given by the parties: Basanta Kumar Choudhury Vs. Sylhet Loan Co., Ltd., Debendra Nath Sadhukhan and

Others Vs. Radhakissen Chamaria and Another, . In any view, the omission of the Court to give an estimate of the value is a mere irregularity and

does not by itself vitiate the sale.

Under the rule as amended by the High Courts of Calcutta, Lahore, Madras, Nagpur and Patna and the Judicial Commissioner''s Court of N.

W. F. Province, the Court is not bound to give its own estimate of the value of the property, but is only required to state the value given by the

parties (see Local Amendments). In view of this, the decisions of the High Courts of Calcutta and Patna and the Judicial Commissioner''s Court of

Nagpur passed before the above amendments, holding that the Court was under a duty to state its own estimate of the value of the property should

be treated as no longer good law.

I shall now briefly review the decisions of this Court on this point. In Thiruvengadasami Iyengar Vs. Govindasamy Udaiyar and Others, it was

held :

A Court undertaking to give valuation which would be a real guide to a bidder even if it did not inspect the property itself at any rate have to

accumulate copious data and hold an elaborate inquiry. The law requites that the Court as fairly and accurately as possible shall state anything

which the Court considered material for a purchaser to know. If it considers a fair and accurate report of the value given by three persons material

for the purchaser and nothing more in that particular respect, the Court will not have erred.

In S. K. Veeraswami Pillai Vs. Kalyanasundaram Mudaliar and Others, , it was held:

When the decree-holder and the judgment-debtor differ hopelessly as to the probable value of the property, a statement as to the value by the

Court is at best a guess and the Court may in the circumstances of a particular case, consider it better to abstain from such guess.

In Thiruvengadaswami Aiyangar Vs. Govindaswami Udayar and Others, it was held that the Court itself is under no obligation whatever to fix in

the proclamation of sale its own valuation of the property to be sold.

In 1948 2 Mad LJ 569 : (AIR 1949 Mad 398) (A), Govinda Menon J. held:

Clause (e) of O. 21, R. 66(2), C. P. C, only requires that the proclamation should contain the value of the property as stated by the decree-holder

and judgment-debtor. It cannot be said that in spite of this provision a duty is cast on the Court by Cl. (f) of O. 21, R. 66(2) to fix its own

valuation and to insert it in the sale proclamation. By enacting the new Cl. (e) it should be deemed that the residuary Cl. (f) is intended to cover

matters other than the market value.

In 1951 Mad WN (short notes) 22 (C.R.P. No. 784 of 1950) (T), Satyanarayana Rao J. held that as laid down by O. 21, R. 66, C. P. C as

amended by the High Court, the sale proclamation should state besides other things the value of the property as stated by the decree-holder and as

stated by the judgment-debtor and that there is no question of reducing or enhancing the upset price at that stage.

In Arunachalathammal Vs. T. Karagasabapathi Pillai, , Mack J. struck a different note and held that where there is wide divergence between the

decree-holder''s valuation and the judgment-debtor''s valuation, it is desirable for the Court to have the property valued by an amin and to have

such valuation inserted in the proclamation.

In C. R. P. No. 1382 of 1956 (V) the learned Chief Justice condemned the practice of notifying the valuations suggested by the judgment-debtor

and the decree-holder as upset prices as being absolutely unworkable. Then my Lord the Chief justice proceeded to hold :

Though it is true that the Judge in execution need not embark on an inquiry with or without the help of a Commissioner as to the value of the

property proclaimed for sale, there is still a duty on the part of the Court to fix the upset price, having regard to such material as is placed before it

by the parties without, of course, a regular enquiry. The Court cannot refuse to do this duty and allow a property to be brought to sale with two

upset prices differing, as do they in this case, to a considerable extent.

In C. R. P. No. 748 of 1956 (W), Ramaswami Gounder J. had to deal with the same point. In that case also the sale proclamation notified as

upset prices the valuations of the decree-holder and the judgment-debtor which differed to a considerable extent. Ramaswami Gounder, J. after

setting out the observations of my Lord the Chief Justice proceeded to observe as follows :

The present case falls directly within that decision and so it is clear that the Subordinate Judge was in error in fixing both the amounts as the upset

price. What he should have done, as required by O. 21. R. 66(2)(e) is to have mentioned both the figures in the sale proclamation without fixing

any upset price. That this is the proper procedure is also indicated by Satyanarayana Rao J. in his order in C. R. P. No. 784 of 1950 (T). In this

connection, it may be observed that there is nothing in O. 21, R. 66(2)(e) enjoining on an executing Court to make an enquiry as regards the

valuation of the properties to be sold and give such valuation in the proclamation of sale. If any authority for that proposition were needed,

reference may be made to the decision of Govinda Menon J. in 1948-2 Mad LJ 569: (AIR 1949 Mad 398) (A).

Another decision of Mack J. in (S) Arunachalathammal Vs. T. Karagasabapathi Pillai, was brought to my notice in which it is stated that the Judge

has expressed a contrary view. Even that learned Judge only stated that where there is a wide divergence between the decree-holder''s valuation

and the judgment-debtor''s valuation, it is desirable for the Court to have the property valued by the amin of the Court and to have such valuation

inserted in the proclamation. But that certainly is not an obligatory duty cast upon the Court by the language of O. 21, R. 66(2)(e). However, in the

present case, the learned Judge was clearly in error in fixing both the amounts as the upset price.

To sum up, after the amendment of O. 21, R. 66, C.P.C, it is now settled law that the Court is under no obligation to notify an upset price of its

own. In fact in many cases it would not be even desirable, for the Court to do so. The obligation of the Court is to state the valuations given by the

decree-holder and the judgment-debtor. ''But they must not be notified as upset prices.'' The Court when ordering the sale with two valuations

noted which are discrepant must adopt one of two courses. If it is desirable in the circumstances of the case for the court to fix in a rough and

ready way the upset price of its own it can do so, because the amended provision does not prohibit the court from fixing its own upset price :

Basanta Kumar Choudhury and Another Vs. Rai Baikunta Nath Chakravarty Bahadur, AIR 1928 281 (Nagpur)

In fact clause (i) of Rule 66 enjoins that the sale proclamation shall include 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. Clause (2) of that rule states that the sale proclamation should specify as fairly and

accurately as possible the property to be sold etc. But where the court does not desire to fix even in a rough and ready way its own valuation, it

will be perfectly within its rights in refraining from doing so and this cannot be canvassed either by way of appeal - Rukmani Ammal Vs. T.S.P.L.

Palaniappa Chettiar, - or revision. But, it will instruct the selling officer either in general or in each case to begin the sale with the higher of the two

valuations as up-set price and if no bidders are forthcoming to go on lowering the upset prices and when the lower of the two valuations is reached

to start again with the lower valuation, as otherwise our not incorruptible Nazirs deputed as selling officers will have to evolve an upset price of

their own and which is most undesirable.

The principles if followed carefully will meet every facet of the controversy which arises under O. 21 Rule 66 C.P.C. and will be in conformity not

only with the settled law of this court but also of the other High Courts: Chandmal v. Vishnu Sarma, AIR 1953 Ajmer 43 (Z-1) and Abdul Sattar

v. Amin, AIR 1952 Sau. 24 (Z-2) and safeguard the interests of both the judgment-debtor and the decree-bolder and obviate unnecessary

revisions.

Beyond drawing the attention of the concerned lower courts to these observations, there is no ground to grant stay in C. R. P. Nos. 10690 of

1956 and 2942 of 1957 and they are dismissed and the interim stay already granted will stand dissolved. C. R. P. No. 725 of 1957 and the

connected C. R. P. No. 4145 of 1957 will stand dismissed.