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R. Srinivasan and ors. Vs. the Andhra Bank, Ltd., - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1948)2MLJ569
AppellantR. Srinivasan and ors.
RespondentThe Andhra Bank, Ltd.,
Cases ReferredThiruvengadasami Aiyangar v. Govindasami Udayar
Excerpt:
- - phul kuar but other cases of various high courts as well......this argument is fallacious and unacceptable. in so far as one of the necessary requisites of a sale proclamation, viz, the value of the property, is concerned there is a specific clause regarding what the proclamation should contain and that is clause (e). clause (f) cannot be reasonably construed as including within its ambit any statement about the court's view about the market value. by enacting the new clause (e) it should be deemed that the residuary clause (f) is intended to cover matters other than the market value. this does not prevent the court, if it thinks necessary, from including the market value as decided by it. neither of the privy council decisions relied on by mr. s. ramachandra aiyar makes it obligatory upon the executing court to embark upon an enquiry regarding.....
Judgment:

Govinda Menon, J.

1. In this petition, preferred against the order of the Sub-Judge of Tiruchirapalli passed under Rule 66 of Order 21, Civil Procedure Code, the chief point argued is that the lower Court acted with material irregularity in the exercise of jurisdiction in not fixing a market value for the property that is sought to be sold by the proclamation which was settled in accordance with the above provision of law. The learned Subordinate Judge after appointing a Commissioner to inspect the property and submit a report, regarding the market value of it, did not give a finding of his own about the matter, but directed that the proclamation should contain the statement, that the decree-holder values the first item, about whose price alone there is now any controversy, at Rs. 5,000, defendant 2 one of the judgment-debtors values it at Rs. 40,000, defendant 3 to defendant 5 at Rs. 1,00,000 and that the commissioner estimates the market value at Rs. 39,000. Other relevant facts are also directed to be inserted in the proclamation for sale.

2. Defendant 3 to defendant 5 now question the propriety of the order of the lower Court on the ground that under Order 21, Rule 66(2)(f) the value of the property according to the decision of the Court is a thing which the Court should consider as material for a purchaser to know in order to judge the nature and value of the property intended to be sold.

3. Mr. S. Ramachandra Aiyar for the petitioners seeks aid for this contention from the decisions of the Privy Council reported in Saadatmand Khan v. Phul Kuar : I.L.R. 20 All. 412 and Marudanayagam v. Manickavasagam (1945) 1 M.LJ. 229 : L.R. 72 IndAp 104 : I.L.R. (1945) Mad. 601. In the former case their Lordships laid down that the value of the property of which the sale has to be ordered is a material fact within the meaning of Section 287(e) of the Code of 1882 and that a misstatement of the same was a material irregularity in conducting and publishing the sale.

4. In Marudanayagam v. Manickavasagam (1945) 1 M.LJ. 229 : 1945 L.R. 72 IndAp 104 : I.L.R. (1945) Mad. 601, the decision turned upon the misstatement by the decree-holder of prior encumbrances on the properties which resulted in a low valuation of the properties. In both the cases the Judicial Committee had to consider the effect on a sale of property, of a misstatement made by a decree-holder regarding the value of what was intended to be sold.

5. Explaining the dictum of the Privy Council in Saadatmand Khan v. Phul Kuar , the learned Judges in Thiruvengadasami Aiyangar v. Govindasami Udayar (1927) 55 M.L.J. 363 : I.L.R. 51 Mad. 655, expressed the view that the Court itself is under no obligation to fix in the proclamation of sale its own valuation of the property to be sold. This decision considers not only the Privy Council judgment in Saadatmand Khan v. Phul Kuar but other cases of various High Courts as well. The opinion of the learned Judges in Thiruvengadasami Aiyangar v. Govindasami Udayar (1927) 55 M.L.J. 363 : I.L.R. 51 Mad. 655 has been statutorily accepted by the insertion in 1936 of a new clause in Order 21, Rule 66(2)(e) to the effect that the proclamation should contain the value of the property as stated by the decree-holder and the judgment-debtor.

6. The petitioners' counsel contends that in spite of this specific Clause (e), it is incumbent upon the Court to undertake an enquiry about the value of the property, come to a decision about it after taking such evidence as is found necessary and then insert that in the proclamation of sale and this duty is cast upon the executing Court because of Clause (f) of Order 21, Rule 66(2). It seems to me that this argument is fallacious and unacceptable. In so far as one of the necessary requisites of a sale proclamation, viz, the value of the property, is concerned there is a specific clause regarding what the proclamation should contain and that is Clause (e). Clause (f) cannot be reasonably construed as including within its ambit any statement about the Court's view about the market value. By enacting the new Clause (e) it should be deemed that the residuary Clause (f) is intended to cover matters other than the market value. This does not prevent the Court, if it thinks necessary, from including the market value as decided by it. Neither of the Privy Council decisions relied on by Mr. S. Ramachandra Aiyar makes it obligatory upon the executing Court to embark upon an enquiry regarding the value of the property and insert such value in the proclamation. In fact the Lahore High Court had amended Order 21, Rule 66 by adding a sub-clause that it shall not be necessary for the Court to give its own estimate of the value of the property. Our own amendment also by implication means the same.

7. Moreover in settling a sale proclamation, the Court is ordinarily functioning in its administrative capacity except where a final decision regarding the rights of the parties is given. Such being the case, in my opinion, the lower Court was justified in the direction it gave and the civil revision petition is dismissed with costs.


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