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M.L. MUBARAK BASHA A!'ID ORS.

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MUNI NAIDU

JANUARY 6, 1997

(K RAMASWAMY AND G.T. NANAVATI, JJ.]

(o, de of Civil Procedure, 1908 i Section 47-0rder 21-Rule 66-Decree-Execution-Auction sale-PdWer of Commissioner to fix the upset plice in conducting the sale-Direction giveit by Executing Cowt to Commissioner not only to conduct sale but also to fv: upset plice=Application for setting aside of sale on the ground that Commissioner had no power to fv: upset plice-Rejection of-Held Rule 66 indicates in unequivocal tenns that that is the function of tite C01M, while proclamation is drawn up, to fv: the amount of the recovCJy for which tlit! sale is ordered and also to specify such other pmticulars as are necessmy in that behalf to be matelial for the purpose of conducting the sale-171e value of the properi)i givei1 by the decreeholder-Judgment-debtor and the upset plice is to be fv:ed under the residue clause relating to w1it mies made by the High Cowt-17iere was no infraction of tire mandatory language contained in Order XX!, Rule 66, CPC as the Commissioner had fv:ed the upset price not 011 his own but on the directi011 of the Court itself.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 101 of 1997.

From the Judgment and Order dated 28.8.95 of the Madras High Court in L.P.A. No. 205 of 1995.

S. Muralidhar and Ms. Neeru Vaid for the Appellants.

M.N. Padmanabhan and K.K. Mani for the Respondent.

The following Order of the Court was delivered :

Leave granted. Heard the learned counsel for the parties.

This appeal by special leave arises from the Division Bench judgment of the Madras High Court, made in LP A No. 205/1995 on August 28, 1995.

The appellant had filed a suit, viz., O.S. No. 69/1976 in the Court of 7

A Subordinate Judge, Thiruvanamalai for partition and separate possession of his 16/64 share in the plaint schedule property. A preliminary decree passed for partition was confirmed. Before, the final decree was passed, the property at Item No. 18 of the plaint schedule, namely, Saw Mill, was initially brought to sale between the parties, as per the directions of the

B Court; subsequently, there was a public auction thereof. In the public auction, the second respondent c'ame to purchase the property for a sum of Rs. 1,03,600. An application had been filed by the appellant under Section 47 of C.P.C. for setting aside sale. Though several grounds had been raised, none of them was pressed. But one ground canvassed before the High Court and pressed for consideration before us is that the Com- C missioner had no power to fix the upset price in conducting the sale. Since this point was raised for the first time before the High Court, the Division Bench has rejected the same and confirmed the sale though it was upset by the learned Single judge Thus, this appeal by special leave.

It has been strenuously contended by the learned counsel for the D appellants that in terms of the mandatory language used in Order XXI, Rule 66, sub-rule (2)(d) & (e), CPC, the Commissioner has no power to fix the upset price which is the judicial function of the Court. Therefore, it goes to1 the root of the matter. We have given opportunity to the learned counsel to place the necessary material before us in that behalf. Both E parties have filed their record and also their affidavits. The only question is : whether the Commissioner or the executing Court can fix the upset price? Order XXI Rule 66 postulates thus :

"66. Proclamation of Sales by public auction - (1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.

(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) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part

' r-

M.L.M. BASHA v. MUNI NAIDU 9

...\ of an estate paying revenue to the Government; A

( c) any encumbrance to which the property is liable;

( d) the amount for the recovery of which the sale is ordered; and B ( 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 that where notice of the date for settling the terms of c the proclamation has been given to the judgment-debtor by means of an order under Rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court Gtherwise directs ;

Provided further that nothing in this rule shall be construed as D .... , required 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.

(3) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner E hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required

by sub-rule (2) to be specified in the proclamation.

( 4) for the purpose of ascertaining the matters to be specified F

in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto.

G Madras and Pondicherry amendment reads - (i) In Sub-rule

(1) for "made" substitute "drawn up".

(ii) substitute sub-rule (2) as follows :

2. The term of such proclamation shall be settled in Court after H

notice to the D.H. and J.D. except in cases where notices have already been served under Order XXI, Rule 64 and such proclamation shall state the time and place of sale and specify as accurately possible - (a) the property to be sold, (b) the revenue assessed upon the estate or part of the estate where the property lo be sold is an interest in an estate or part of an estate paying revenue to the Government, (c) any encumbrance to which the property is liable, ( d) the amount for the recovery of which the sale is ordered, ( e) the value of the property as stated (i) by the D JI. (ii) by the J .D., ( t) every other thing which the Court consider.s material for a purchaser to know in order to judge the nature and value of the property."

A reading of the above provision would in unequivocal terms indicate that that it is the function of the Court, while proclamation is drawn up, to fix the amount of the recovery for which the sale is ordered and also to specify such other particulars as are necessary in that behalf to be material D for the purpose of conducting the sale. The value of the property given by the decree-holder-judgment-debtor and the upset price is to be fixed under the residue clause relating to writ rules made by the High Court. The learned Single Judge himself observed in his order that the Commissioner who has been examined as RW-3 had stated that he had fixed the sale of E the property and the upset price at Rs. 70,000 as was ordered by the Court and the sixth respondent was the highest bidder in the said bid, viz., for Rs. 95,200. He had deposited the entire amount on the said date. It is seen that the executing Court appears to have given direction to the Commissioner not only to conduct the sale but also to fix the upset price at Rs. 70,000. In that view, there is no infraction of the mandatory language F contained in Order XXI, Rule 66, CPC as the Commissioner had fixed the upset price not on his own but on the direction of the Court itself.

The appeal is accordingly dismissed. No. costs.

T.N.A. appeal dismissed.