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S.K.M. Mohammad Mustafa Maracayar Vs. Udaianachi Ammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1475 of 1965
Judge
Reported inAIR1966Mad348
ActsCivil Prodecure Code, 1908 - Order 21, Rule 83
AppellantS.K.M. Mohammad Mustafa Maracayar
RespondentUdaianachi Ammal
Cases ReferredRaghavachariar v. Murugesa Mudaliar
Excerpt:
- - however, it seems to be a fact that the mortgagee decreeholder has been attempting to realise the debt by sale of these properties on several occasions, and that the last time that the sale was held, the sale was unsuccessful. in the present case, the facts are incontrovertibly established that the mortgagee decreeholder has not been able to realise the debt, from january 1963, that the mortgage is of the year 1937, and that there was at least one unsuccessful sale, on a prior occasion......has now obtained this permission. the court overruled the objections of the judgment debtor, and granted permission in a cryptic order, in which no special grounds are set forth. however, it seems to be a fact that the mortgagee decreeholder has been attempting to realise the debt by sale of these properties on several occasions, and that the last time that the sale was held, the sale was unsuccessful.(2) certain very relevant aspects of this situation have been the subject of comment by krishnaswami nayudu, j. in varadarajulu pillai v. gendapodi nanniar : air1950mad392 . the learned judge referred to and followed a very early decision of the calcutta high court in sheonath doss v. jankiprosad sing, ilr(1889) cal 132 and also made reference to the observations of the judicial committee.....
Judgment:
ORDER

(1)This revision proceeding involves a question of some degree of interest, whether the permission to bid and set off granted to the mortgagee decreeholder in a pending sale of the hypotheca, could be granted without specifying any special grounds therefor, or whether it should be conceded only with caution and under special circumstances. The facts are not in dispute. The revision petitioner is the judgment debtor who opposed the grant of the permission to bid and set off in this case. The respondent is an assignee-mortgagee-decreeholder and she has now obtained this permission. The court overruled the objections of the judgment debtor, and granted permission in a cryptic order, in which no special grounds are set forth. However, it seems to be a fact that the mortgagee decreeholder has been attempting to realise the debt by sale of these properties on several occasions, and that the last time that the sale was held, the sale was unsuccessful.

(2) Certain very relevant aspects of this situation have been the subject of comment by Krishnaswami Nayudu, J. In Varadarajulu Pillai v. Gendapodi Nanniar : AIR1950Mad392 . The learned Judge referred to and followed a very early decision of the Calcutta High Court in Sheonath Doss v. Jankiprosad Sing, ILR(1889) Cal 132 and also made reference to the observations of the Judicial Committee in Mahomed Meera Ravuthar v. Raghunada Aiyar Appa Meikan Gopalan, (1900) 10 MLJ 1 and of Schwabe, C. J. in Raghavachariar v. Murugesa Mudaliar, : AIR1923Mad635 . All these authorities emphasise the broad principle that caution should be exercised in granting leave to bid and set off to the decree-holder, and that where the permission to bid and set off is granted to the mortgage, that discretion should be exercised with considerable care; instances of that kind should be scarce and not liberal. In the present case, the facts are incontrovertibly established that the mortgagee decreeholder has not been able to realise the debt, from January 1963, that the mortgage is of the year 1937, and that there was at least one unsuccessful sale, on a prior occasion. Under those circumstances. I do not think that it is necessary to interfere in revision with the order of the court below, granting leave to bid and set off. But I must reiterate the principle emphasised in the catena of cases that I have referred to, namely, that such permission should be cautiously granted, and after due enquiry into all attendant circumstances. Since it is not a matter of course, but a discretion to be judicially exercised, it is certainly desirable that the order should specify the grounds on which the permission has been granted, particularly where the objections thereto have been overruled.

(3) There are, however, one or two other special features of this case, upon which I desire to comment before dismissing the revision. The first is that the hypotheca appear to be extensive in extent, and the case of the judgment-debtor is that they are very valuable. In the light of that pleading it is certainly desirable that there should be due publicity, before the sale is actually held. The second feature is that, in accordance with O. 21, R. 83, C.P.C., the judgment-debtor desires to have an opportunity to negotiate for a private sale of the property to satisfy the mortgage debt, before the sale is finally held and rights are created in a third party purchaser, or the decreeholder succeeds in being the highest bidder. I direct that, in view of the facts of this case, such an opportunity might be given to the judgment-debtor, at any time on or before the actual date of sale. If the judgment-debtor produces such an intending purchaser who is willing to deposit the amount of the debt due to the mortgagee, an opportunity should be given for making the deposit, and the sale should be held only if this attempt fails. This revision is accordingly dismissed. The parties will bear their own costs.

(4)Revision dismissed.


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