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Kizhakkumbat Madhathil Appu Alias Subramania Pattar Vs. C. Achutha Menon, Receiver (Dead) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1926)51MLJ165
AppellantKizhakkumbat Madhathil Appu Alias Subramania Pattar
RespondentC. Achutha Menon, Receiver (Dead) and ors.
Excerpt:
- .....the commissioner appointed by the court after the preliminary decree prepared the proclamation of sale and sold the property. it is for the court to settle the proclamation of sale and it could not delegate that power to the commissioner appointed by it. order 21, rule 66 directs that when 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 and then 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 the property to be sold and a number of things. it is also contended that no reserve price was mentioned in the proclamation of sale......
Judgment:

1. The first point raised in this appeal is that the proclamation of sale was not settled by the Court but that the Commissioner appointed by the Court after the preliminary decree prepared the proclamation of sale and sold the property. It is for the Court to settle the proclamation of sale and it could not delegate that power to the Commissioner appointed by it. Order 21, Rule 66 directs that when 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 and then 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 the property to be sold and a number of things. It is also contended that no reserve price was mentioned in the proclamation of sale. It is also urged that the appellant was not allowed to bid at the auction. The learned Judge relying upon the report of the Receiver has dismissed the appellant's application to set aside the sale. Even if the appellant was aware of the contents of the proclamation prepared by the Receiver that would not relieve the Court of its duty of settling the proclamation. As the records stand at present we are unable to say whether the allegation of the appellant is true or false. If the proclamation was not settled by the Court the sale would be invalid. As the learned District Judge has not taken evidence in support of the allegations in the petition and as the auction purchasers are not represented here, we think the proper course would be to set aside the order of the District Judge and direct him to restore the application of the appellant to file and dispose of it after taking such evidence as may be adduced by him and other parties to the suit. Costs of this appeal will abide the result and be provided for in the order that will be passed by the District Court.

2. The same order on C.M.A. Nos. 366 of 1922 and C.M.A. No. 21 of 1924.


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