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Rukumani Ammal Vs. T.S.P.L. Palaniappa Chettiar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in114Ind.Cas.652
AppellantRukumani Ammal
RespondentT.S.P.L. Palaniappa Chettiar
Cases ReferredSivagami Achi v. Subramania Ayyar
Excerpt:
civil procedure code (act v of 1908), section 47, order xxi, rule 66 - order settling terms of sale proclamation--upset price, fixing of--appeal. - .....the order of the subordinate judge in execution under order xxi, rule 66, while settling the sale proclamation. various contentions were raised when the sale proclamation was fixed. one was as regards the value of the property and the other was as regards certain encumbrances. there were two encumbrances, one wasa mortgage to one subramania sastri and the other was the security given to the district court in the tanjore palace estate suit, where certain parties withdrew money from court. as regards the security the contention on one side was that the tanjore palace suit encumbrances did not subsist and as regards subramania sastri's mortgage the contention was that it was not for a cash consideration but as a charge for some running account. it was also contended that there was no.....
Judgment:

Kumaraswami Sastriar, J.

1. This Letters Patent Appeal arises out of an order refusing stay in C.M.A. No. 108 of 1928 filed against the order of the Subordinate Judge in execution under Order XXI, Rule 66, while settling the sale proclamation. Various contentions were raised when the sale proclamation was fixed. One was as regards the value of the property and the other was as regards certain encumbrances. There were two encumbrances, one wasa mortgage to one Subramania Sastri and the other was the security given to the District Court in the Tanjore Palace Estate suit, where certain parties withdrew money from Court. As regards the security the contention on one side was that the Tanjore Palace suit encumbrances did not subsist and as regards Subramania Sastri's mortgage the contention was that it was not for a cash consideration but as a charge for some running account. It was also contended that there was no mortgage amount due to him and that Subramania Sastri and the plaintiff consented to sell the property free of encumbrances. This question had to be decided in fixing the proclamation of sale. The Subordinate Judge said that the Tanjore Palace security was not discharged because there was no order cancelling the security bond. He also said that, as the consent of encumbrancers had not been obtained, he could not in this suit make the property free of encumbrances, and he in determining the value of the encumbrances assumed it to be only half the amount alleged. This was necessary in his opinion in order to ascertain what the upset price ought to be, and he fixed the upset price having regard to this method of calculation. He also stated that the contentions of both the parties should be mentioned in the sale proclamation so that the purchaser might be in possession of all the material facts which would guide him in purchasing the property. He did not decide any question, because the fact that he directed the notification of what the parties contended rather suggests that what he did was to fix the method of ascertaining what the upset price ought to be, leaving the other questions to the discretion of the purchaser. Again it seems to me that, in order to fix the upset price it is not necessary to find out and decide the market value of the property. Very often the upset price is the price at which the auctioneer has to begin and the Judge is not bound to (Sick) the sale because the bid exceeds (Sick) is a little higher than the upset price. In the present case the fact that the Judge was of opinion that it was unnecessary to find out the market value of the property rather suggests that he took the amount fixed in the previous proclamation only as a tentative price at the beginning and he did not determine that the market value of the property was the value which should be fixed in the sale proclamation.

2. On these facts the question is whether a civil miscellaneous appeal would lie and if the civil miscellaneous appeal would not lie, it is clear that the Letters Patent Appeal also would not lie. Order XXI, Rule 66, corresponds to Section 287 of the old Code of Civil Procedure with certain modifications. The chief modification is that notice should be given to both parties. It has been held in Sivagami Achi v. Subrahmania Ayyar 27 M. 259 : 14 M.L.J. 57 by a Pull Bench of this Court that an order under Section 287 is an administrative order and an appeal would not lie against such an order. The question again arose under Order XXI, Rule 66, and it was held by a Bench of this Court in Rama Naidu v. Ramakrishna Naidu : (1924)46MLJ192 , that the change in the new Code does not alter the character of the proceedings and though the Judge settles the proclamation it i7s still an administrative order. In Ramanathan Chettiar v. Venkatachallam Chettiar : AIR1923Mad619 it was held that an order fixing the upset price is not appealable as it is an administrative and not a judicial order. In this connection I may also refer to Tawker & Sons v. Harsookdoss Chonghmull : AIR1924Mad386 , Ramanathan Chetty v. Somasundaram Chettiar 37 Ind. Cas. 897 : (1917) M.W.N. 141 and Avudainayagappa Pillai v. Sundaranandam Pillai 76 Ind. Cas. 173 : 19 L.W. 585 : A.I.R. 1924 Mad. 767. It is, no doubt, true that in Kaveribai Ammal v. Mehta & Sons : (1924)46MLJ71 . Schwabe, C.J., and Coleridge, J, were of opinion that the alteration in Order XXI, Rule 66, was a circumstance which in their opinion rendered the authority of Sivagami Achi v. Subramania Ayyar 27 M. 259 : 14 M.L.J. 57 doubtful and both the learned Judges were of opinion that, if necessary, they would refer the question to a Full Bench. As the decision proceeded upon Clause 15 of the Letters Patent they did not think a reference necessary. In Arukapalli Narasimha Rao v. Arumilli Subbarayudu : (1926)51MLJ135 , Phillips and Madhavan Nair, JJ., were inclined to take the same view as was taken by Schwabe, C.J., and Coleridge, J. I think that so far as Order XXI, Rule 66, requires decision as to matters which are purely administrative in nature such as fixing the upset price and the details of the sale proclamation the matter is administrative. But where the Judge in addition to deciding such matters in settling the sale proclamation, decides questions which would come under Section 47, he cannot by merely purporting to act under Order XXI, Rule 66 bar an appeal. There is no appeal under the Civil Procedure Code of 1908 against orders passed under Order XXI, Rule 66 so that from the point of view as to whether an appeal lies or not it does not matter if the orders passed under the section are judicial or administrative. I think the real question in each case is what is in substance the order passed by the Judge, whether the order purporting to be under Order XXI, Rule 66, really decides questions in execution so as to bring the case under Section 47 or any other appealable rule of the Code, I may in this connection refer to Grant v. Suraj Mal : AIR1923Pat134 and Basanta Kumar Choudhury v. Baikunta Nath Chakravarty : AIR1926Cal610 . In the present case it is difficult to see how the order passed can be brought under Section 47. I have already set out what in effect was the order passed by the Subordinate Judge. He in fact decided no question settling the rights of the parties. All he did was to fix the upset price and to deal with the various objections which all the parties raised to the upset price. In these circumstances, I think the case comes clearly within the principle of Sivagami Achi v. Subramania Ayyar 27 M. 259 : 14 M.L.J. 57 where it was held that an administrative order as such could not be appealed against. It has been argued that the Subordinate Judge has not dealt with the objection that there can be no sale because the attachment has fallen through. This was an objection raised while the Judge was settling the proclamation. He has not dealt with it in his order evidently because the matter was not one which he could deal with under Order XXI, Rule 66. I think the proper course would be for the petitioner, if so advised, to put in an application, objecting to the further, execution of the decree or the sale because of there being no attachment and on that an order can be passed from which there may or may not be a right of appeal.

3. It is also urged that the sale proclamation does not carry out the terms of the order passed by the Judge, in that, it does not note the contentions of both the parties so as to enable the purchaser to be in possession of the necessary information. It is a matter which, if brought to the notice of the Court, can be easily remedied by bringing the proclamation in conformity with the order passed by the learned Judge. I think if a fresh proclamation is issued this defect can easily be remedied. But it does not in any way affect the order passed by the Subordinate Judge under Rule 66 which is nothing more than an administrative order.

4. I do not think the civil miscellaneous appeal lies and so it should be dismissed. It follows that the Letters Patent Appeal should also be dismissed as the original civil miscellaneous appeal was incompetent. There will be a fresh proclamation. One set of costs for all the three Civil Miscellaneous Appeal, Letters Patent Appeal and the Civil Miscellaneous Petition.

Reilly, J.

5. Whether an order made under Rule 66 of Order XXI of the Code as it now stands, is purely an administrative order, or has anything judicial in its nature, it is clear that there is no appeal under the Code against an order made under Rule 66 as such. But I agree that, if a Judge under the guise of making an order under that rule or in the course of proceedings under that rule, makes an order which comes within the scope of Section 47 of the Code, then there is an appeal against his order. Now, in this case, the learned Subordinate Judge has fixed certain upest prices. His order does not purport to determine, or to give his estimate of, the market value of the property. He has fixed certain prices, which he describes as the upset prices and which appear to be the prices at which the auctioneer is to start the bids and he has mentioned that, if those prices are not reached they will have to be lowered on a future occasion. That, I think, makes it quite clear that the upset prices he mentions were not fixed by him as representing any definite estimate of the market value of the property. It was his duty under Rule 66 to give in the, proclamation everything which he considered 'material for a purchaser to know in order to judge of the nature and value of the property.' It was a very difficult thing in this case for him to give any definite indication of the value of the property as one party contended that it was subject to heavy encumbrances and the other party that it was subject to no encumbrance at all. The learned Subordinate Judge has directed in his order that it should be made clear that one party contends that there are these encumbrances and that the other party maintains that the property is clear of them. The last sentence of his order dated 14th December, 1927, in which he directed that the memorandum last filed by defendant No. 2 should be copied out in the proclamation, makes it quite clear that he intended to put all possible information before the bidders and he was acting reasonably in this particular case. In doing that he arrived at no finding whether the encumbrances were binding or not. It would have been improper for him to attempt to do so in such proceedings. But defendant No. 5, who is now the appellant here, has nothing to complain of on the ground that her representations have not been brought to the notice of the bidders. I agree that the Subordinate Judge has not purported to make, nor in fact made, any order between the parties which would come within the scope of Section 47 of the Code and that, therefore, there is no appeal against his order.

6. I agree with my learned brother that the Letters Patent Appeal also should be dismissed.


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