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Mudunuru Raghunatharaju Vs. Kasim Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1060 of 1965 and A.A.O. No. 425/63
Judge
Reported inAIR1966AP152
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47, 96, 104 and 115 - Order 21, Rules 2, 66 and 66(2); Andhra Civil Practice Rules - Rule 199(2)
AppellantMudunuru Raghunatharaju
RespondentKasim Khan and ors.
Advocates:S.C. Venkatapathiraju, Adv.
DispositionPetition allowed
Excerpt:
civil - appealable order - sections 47, 96, 104, 115 and order 21 rule 66 of code of civil procedure, 1908 and rule 199 (2) of andhra civil rules of practice - executing court by an order reduced upset price in sale proclamation as prayed by decreeholder - appeal preferred by judgment-debtor - whether order passed by executing court is appealable - impugned order not related to execution , discharge or satisfaction of decree - falls outside ambit of section 47 - held, order not appealable. - .....the contention of the learned counsel for the petitioner is that the court had no power to fix the upset price, excepting rule 199 of the civil rules of practice and since there was no petition by the decree-holder to bid as enjoined in that rule this rule was not applicable. we find sufficient force in the contention of the learned counsel for the petitioner.3. order 21, rule 66 which is the relevant provision reads thus:--'66(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 he (drawn up) in the language of such court. 2. such proclamation shall be drawn up after notice to the decree-holder and judgment-debtor and shall state the time and place of sale, and specify as accurately as.....
Judgment:

Manohar Pershad, J.

1. This appeal is on behalf of the judgment-debtor and is directed against the order of the executing court D/-18-10-63 reducing the upset price as prayed by the decree-holder. We were very doubtful as to whether this was an appeal able order. We therefore asked the learned counsel to satisfy us on this point. The learned Counsel relying on the case of Venkataswami vs. Nagayya, AIR 1925 Mad 1142 contended that the appeal was proper and maintainable. We do not agree with the contention of the Counsel. AIR 1925 Mad 1142 was a case where the question was whether a second appeal was entertainable. No doubt in considering that question there was a reference to Order 21, Rule 66 and Section 47 of the C.P.C. But there is nothing in this decision to show that it was held therein that any petition filed under Order 21, Rule 66 and the decision given thereon would be an appeal able order, As the order passed by the lower court does not either relate to execution, satisfaction or discharge of the decree, the appeal would not be maintainable. The learned counsel for the appellant states that if it is held that this appeal is not maintainable the same may be treated as revision as it involves a legal point. We accept the request of the learned counsel. The point urged is one of law and there is no reason why this court should not treat it as revision. We therefore treat it as revision.

2. The contention of the learned counsel for the petitioner is that the court had no power to fix the upset price, excepting Rule 199 of the Civil Rules of Practice and since there was no petition by the decree-holder to bid as enjoined in that rule this rule was not applicable. We find sufficient force in the contention of the learned counsel for the petitioner.

3. Order 21, Rule 66 which is the relevant provision reads thus:--

'66(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 he (drawn up) in the language of such court.

2. Such proclamation shall be drawn up after notice to the decree-holder and judgment-debtor and shall state the time and place of sale, and specify as accurately as possible:--

(a) the property to be sold;

(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 part of an estate paying revenue to the Government.'

(c)....................

(d)........................

(e) the value of the property as stated (i) by the decree-holder and (ii) by the judgment-debtor; and

(f) 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.' The court below instead of directing the value of the property as staled by the decree-holder and judgment-debtor to be specified in the proclamation of sale, on the petition of the decree-holder, has now reduced the upset price. The first question that arises is whether any power is given to the court to either reduce or increase the upset price. The only provision that is brought to our notice is Rule 199 of the Civil Rules of Practice.

4. Rule 199(2) which relates to the upset price is in the following words:--

'In cases in which the court may consider that the applicant should not he allowed to bid for less than a sum to be filed, it shall be competent to the court to give leave to bid at sale, only on condition that the applicant's bid shall not be less than the amount so fixed by the court, which amount shall, as far as practicable, be determined with reference to the probable market value of the property, or of the lot or lots into which the property is divided for sale.'

Thus it would appear that under the above provision the court could fix the upset price only when there is a petition by the decree-holder to bid. Excepting this there is no other provision in the Civil Procedure Code to fix the upset price.

5. Identical question had come up for consideration in the case of Sadatinaud Khan v. Phulkaur, (1898) ILK 20 All 412 before their Lordships of the Privy Council. That was a case under Clause (e) of Section 287 of the old Civil Procedure Code corresponding to Order XXI, Rule 66 of the present Code, and the question related to the effect of under-statement of the value of the property. It was held that an under-statement of the value was a material irregularity in publishing and conducting the sale. Explaining the dictum of the Privy Council the learned Judges, in Thirnvengada Swamy v. Govinda Swami, AIR 1928 Mad. 503 expressed the view that the Court itself was under no obligation whatever to fix in the proclamation of sale its own valuation of the property to be sold. This opinion of the learned Judges has been statutorily accepted by the insertion in 1936 of the new clause in Order XXI, Rule 66 Clause (e) to the effect that the proclamation should contain the value of the property as stated by the decree-holder and the judgment-debtor, and it does not make it obligatory on the executing Court to embark upon an enquiry regarding the value of the property and insert such value in the proclamation, In tne case of Gangayya v. Nalam Nukaraju, (1962) 2 Andh L, T. 75 Sanjeevarow Nayudu J., took a different view relying on Order XXI, Rule 66(2) (f) and held that the whole idea of fixing the upset price was to prevent the property being sold away for a very small price and such fixation not only serves as a guidance to the intending purchaser but also serves to prevent the properly from briny knocked down in the auction for the price much below its market value. Though in this case there is reference to Order XXI Rule 66(2) (e) C.P.C. yet our learned brother did not rely on this provision and relying on Order XXI. 'Rule 66(2) (f) held that the court had the power to fix the upset price. In our opinion Order XXI, Rule 66(2) (t) which is a residuary clause cannot be intended to cover mailers other than the market value. We therefore do not find ourselves in agreement with the view of our learned brother. We agree with the view taken in the case of Sreenivasan v. Andhra Bank Ltd., AIR 1919 Mad 398.

6. The revision is therefore allowed. Theorder of the Court below is set aside and thecase is sent back to the executing court witha direction that it should issue a fresh proclamation as provided under Order XXI, Rule 66(2) (e)showing the value of the property stated by thedecree-holder and the judgment-debtor andproceed with the execution matter. The petitioner will he entitled to costs.


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