IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12922 of 2008 M/S BHAGALPUR FOUNDRY PVT.LTD. Versus THE STATE BANK OF INDIA & ORS ------------ For the Petitioner : Mr. Gautam Kejriwal For the Respondent : Mr. Mukundjee ------------- 03 12.09.2008 It is not in dispute that a certificate was issued against several persons jointly and separately for recovery of dues of the respondent- bank. In the recovery proceedings two of the guarantors who are the certificate debtors died. Bank has now obtained proclamation of sale and is executing the certificate. This has been objected on the ground (1) that in absence substitution of the dead certificate debtors by legal heirs, the execution cannot be carried out of the decree (certificate) itself. (2) The valuation is grossly under valued compared of government valuation as prevalent for the area (3) the property in fact is joint property where individual shares have not been physically demarked and till then no part can be sold. Learned counsel for the bank submits that the petitioners were given chance to furnish name for the purposes of substitution but they have not so done. One aspect is clear that the bank itself has not taken steps for substitution. In my view, where a decree is against several persons some of whom have died and remained unsubstituted, the decree cannot be executed. This is a fundamental principle of law and equally applies to execution in certificate as, is being sought for. Thus, - 2 - on this finding alone the proclamation of sale cannot be permitted to continue till the Recovery Officer ensures that due substitution are made for the dead judgment debtor/certificate debtor. As the matter has to be reconsidered at that level, I would only notice a matter which would require reconsideration in relation to valuation. State Government has fixed valuation for properties in particular areas where valuation is made and/or reserve price are fixed, it must be so made after considering the same otherwise valuation becomes too hypothetical. The government valuation is done under the provision of the Stamp Act, taking into consideration actual free sale of the property in the area, which is a best guide for this purpose. The Recovery Officer would then consider as to whether interest in the building which is on the land has been divided or is divisible or not with reference to the deed of mortgage with the bank and what is the extent of interest of the guarantors vis-à-vis the land and the building thereon. These considerations do not appear from the orders passed while issuing proclamation of sale. In such a situation, the proclamation of sale as made is set aside with liberty to the Recovery Officer to go into the issues, as indicated above and to proceed afresh in accordance with law and then pass appropriate orders in that regard. It must be remembered that even while selling properties in execution of a Court decree the interest of the judgment debtor has to be kept in mind. It cannot be that merely because a person is a debtor he loses all rights in the matter and his property can be dealt in any manner, it is deemed fit even contrary and prejudicial to his interest. Equities have to be balanced. - 3 - With these observations and directions, the writ petition stands disposed of leaving it to the Recovery Officer to reconsider the matter in accordance with law. Trivedi/ (Navaniti Prasad Singh,J.)