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Rakkayi Ammal Vs. Murugaiyyan Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1982)1MLJ255
AppellantRakkayi Ammal
RespondentMurugaiyyan Pillai and ors.
Excerpt:
- - in these circumstances, there is no infirmity or transgression of jurisdiction vested or failure to exercise the jurisdiction vested with the lower appellate court and as such, this civil revision petition is liable to be dismissed and is hereby dismissed......revision petition is filed by the plaintiff in o.s. no. 413 of 1974 under section 151, code of civil procedure, against the order of the learned district munsif, nagapattinam, dated 30th august, 1980 in e.a. no. 473 of 1980. it is relevant in this connection to note that this application e.a. no. 473 of 1980 had been entertained by the lower court under order 21, rule 72(a) of the code of civil procedure. the said rule reads as follows:72-a (1) notwithstanding anything con tained in rule 72, a mortgagee of immovable proporty shall not bid for or purchase property sold in execution of a decree on the mortgage unless the court grants him leave to bid for or purchase the property.(2) if leave to bid is granted to sucb mortgagee, then the court shall fix a reserve price as regards the.....
Judgment:
ORDER

S. Swamikkannu, J.

1. This civil revision petition is filed by the plaintiff in O.S. No. 413 of 1974 under Section 151, Code of Civil Procedure, against the order of the learned District Munsif, Nagapattinam, dated 30th August, 1980 in E.A. No. 473 of 1980. It is relevant in this connection to note that this application E.A. No. 473 of 1980 had been entertained by the lower court under Order 21, Rule 72(A) of the Code of Civil Procedure. The said rule reads as follows:

72-A (1) Notwithstanding anything con tained in Rule 72, a mortgagee of immovable proporty shall not bid for or purchase property sold in execution of a decree on the mortgage unless the Court grants him leave to bid for or purchase the property.

(2) If leave to bid is granted to sucb mortgagee, then the Court shall fix a reserve price as regards the mortgagee, and unless the Court otherwise directs the reserve price shall be

(a) not less than the amount then due for principal, interest and costs in respect of the mortgage if the property is sold in one lot; and

(b) in the case of any property sold in lots, not less than such sum as shall appear to the Court to be properly attributable to each lot in relation to the amount then due for principal, interest and costs on the mortgage.

(3) In other respects, the provisions of Sub-rules (2) and (3) of Rule 72, shall apply in relation to purchase by the decree-holder under that Rule.

2. It is seen from the records that on 29th April, 1980 in E.A. No. 144 of 1980 the. reserve price was fixed at Rs. 20,000. It is also seen that, on that, the plaintiff did not bid. In the counter that was filed by the first defendant to this application E.A. No. 473 of 1980 in E.P. No. 133 of 1979, several contentions were raised including the contention to the following effect, namely, the land under reference would normally fetch more than Rs. 20 per kuli i.e. Rs. 60 per cent, and that the price quoted by the first defendant is the reasonable and moderate price prevailing in the village and that the land under reference is having assured irrigation and it is under double crop cultivation. It is further stated in the counter filed by the 1st defendant that it consists in single continuous block and the lands were capable of fetching more price. The plaintiff has wantonly brought the large extent of 4. 70 acres worth Rs. 18,000' for sale, is another contention that has been imbeded in the counter filed on behalf of the first respondent before the lower Court in E.A. No. 473 of 1980 in E.P. No. 133 of 197g. It is also contended that the plaintiff ought to have apportioned the lands in lots to realise her suit amount instead of bringing large extent of property for low price to cause inconvenience and difficulties to the first defendant. In the lower Court, R. 2 to R. 5 absented them selves and they were set ex parte in this application E.A. No. 473 of 1980 on 5th August, 1980. The petition was heard on 30th August, 1980 and it was disposed of on that date itself. It was observed by the lower Court in its order which is under revision that as per order if E.A. No. 144 of 1980, the decree-holder was permitted to bid at the auction and reserve price was also fixed at Rs. 20, 000 and so the plaintiff has no right to ask to reduce the reserve price according to her convenience.

3. The point in this civil revision petition is whether the order in E.A. No. 473 of 198u in O.S. No. 413 of 1974 disposed of by the learned District Munsif, Nagapattinam, on 30th August, 1980 is liable to be revised on the basis that the trial Court has committed irregularity and illegality in its order and also exercised its jurisdiction in excess of what had been conferred on it. We have already extracted Rule 72(A), Order 21 of Civil Procedure Code. It is common ground that permission had been granted to the plaintiff-petitioner herein to bid in the auction as per the provisions of Rule 72(A)(1), Civil Procedure Code. It is also common ground that as per the provisions of Order 21, Rule 72(A)(2), the reserve price as regards the mortgagee had been fixed at Rs. 20,000. The provision of Sub-rules (2) and (3) of Rule 72 of Order 21, Civil Procedure Code shall apply in relation to purchase by the decree-holder under that rule. Rule 72,Sub-rules (2) and (3) read as follows:

72 (2): Where a decree-holder purchases with such permision the purchase money and the amount due on the decree may, subject to provisions of Section 73, be set off against one another, and the Court executing the decree shall enter up, satisfaction of the decree in whole or in part accordingly.

(3) Where a decree-holder purchases, by himself or through another person without such permission, the Court may, if it thinks fit, on the application of the judgment-debtor any other person whose interests are affected by the sale, by order set aside the sale; and the costs of such application and order, and any deficiency of price which may happen on the re-sale and all expenses attending it, shall be paid by the decree-holder.

In this connection, it is relevant to point out the upset price about which Rule 199(2) of the Civil rules of Practice speaks. Rule 199(8) of the said rules reads as follows:

In cases in which the Court may consider that the appellant should not be allowed to bid for less than a sum to be fixed, it shall be competent to the Court to give leave to bid at the sale, only on condition that the appellant'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.

4. This Rule 72(A) has been inserted by the. Civil Procedure Code Amended Act CIV of 19761 and this rule has been designed for cases for purpose of Court auctionsale by mortgagee of the property. One will have to obtain leave for purchase. The Court will fix the reserve price while granting him leave, not less than the amount then due for principal, interest and cost, in respect of the mortgage and when the pro party is sold in different lots, the Court will fix the reserve price as to fit to the amount of decree. These are the agencies that have been introduced in the procedural law of the land on the provisions of Rule 72(A), Order 21, Civil Procedure Code. As already stated, the point for consideration in this case is whether the lower Court had applied its mind with reference to the objectives that are imbedded in this Order 21, Rule 72(A), Civil Procedure Code, in disposing of this application or has it made its order revisable under Section 151 Civil Procedure Code. In this view, when the entire order together with the materials on record is scrutinised, this Court finds that the lower Court had correctly come to the conclusion by following the procedure. In these circumstances, there is no infirmity or transgression of jurisdiction vested or failure to exercise the jurisdiction vested with the lower Appellate Court and as such, this Civil Revision Petition is liable to be dismissed and is hereby dismissed. But in the circumstances there will be no order as to costs.


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