Andhra HC (Pre-Telangana)
A.C. Nagaraju, S/O Alichetty Chinna ... vs N. Sreenivasa Reddy S/O. N. Chanchu ... on 16 June, 2004
Equivalent citations: AIR2004AP465, 2004(4)ALD468, 2004(5)ALT149, I(2005)BC302, AIR 2004 ANDHRA PRADESH 465, (2005) 1 BANKCAS 302, (2004) 4 ANDHLD 468, (2004) 5 ANDH LT 149, (2004) 2 ANDHWR 333
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. This is an appeal filed under Order XLIII Rule 1 of the Code of Civil Procedure ('C.P.C.' for brevity) against the order dated 6.3.2003 passed by the Senior Civil Judge, Hindupur in E.A.No.228 of 2002 in E.P.No.32 of 2001 in O.S.No.24 of 1998. Appellant is the Decree holder and respondent is the Judgment debtor.
2. The appellant filed the suit to recover certain amount from the respondent. The suit was decreed. For realization of the decretal amount, the appellant filed E.P.No.32 of 2001. An item of immovable property was brought to sale on 15.2.2002. The appellant himself emerged as the highest bidder for a sum of Rs.1,20,000/-. The sale is yet to be confirmed.
3. The respondent filed E.A.No.228 of 2003 under Order XXI Rule 90 C.P.C. to set aside the sale of E.P. schedule property. He contended that the value of the property is about Rs.6,00,000/- as certified by the concerned Sub-Registrar whereas in the sale proclamation it was indicated as Rs.1,00,000/-. He contended that it was a clear case of mis-representation and fraud on the part of the appellant and he suffered gross injustice on account of the same. The other grounds pleaded by him were that the auction was held in the Court premises and not at the site of the property, the sale proclamation was defective, and the publication was made in English though it required to be published in the language of the locality.
4. The respondent examined himself as P.W.1 and marked Ex.A1, the valuation certificate, issued by the Sub-Registrar. The appellant was examined as R.W.1 and on his behalf Exs.B1 to B4 were marked. Through the order under appeal, the Executing Court set aside the sale on the ground that the valuation of the property furnished by the petitioner was far less than the actual value as evident from Ex.A1.
5. Learned counsel for the appellant, Sri O. Manohar Reddy, submits that the order under appeal cannot be sustained in law. According to him, it is not obligatory on the part of the Court to ascertain the value of the property proposed to be sold and it is always competent for the Court to accept the value that is furnished by the parties. Placing reliance upon Rules 62 and 90 of Order XXI C.P.C., he further contends that if at all the respondent was of the view that the value of the property was not correctly indicated, it was open to him to take objection or appropriate steps at the time of conducting auction or before that. Learned counsel urges that the respondent waited till the proceedings concluded and raised the objection only with a view to protract the proceedings.
6. Sri E.V. Bhagirath Rao, learned counsel for the respondent, on the other hand, submits that the respondent was kept in dark of various developments as regards the sale and valuation and only at a later stage he came to know about the irregularities that crept into the matter. He contends that though it is not obligatory for the Court to ascertain the value of the property, once it has undertaken certain cases, it should be with reference to the reliable material and not hearsay.
7. The decree obtained by the appellant against the respondent has become final. Execution proceedings were initiated and an item of immovable property was got attached. Sale proceedings were initiated in accordance with the provisions of Order XXI C.P.C. There is no controversy between the parties up to the stage of service of notice, Ex.B1, on the respondent for the purpose of settling the terms of auction. While settling the terms, the appellant furnished the value of the property at Rs.1,00,000/-. Totally different consequences would have ensued had the Executing Court proceeded to conduct the sale after ensuring that necessary notices are served on the respondent. The record does not disclose as to whether the terms of auction were settled in the presence of the respondent or whether he was put on notice as to the subsequent proceedings. The Executing Court directed its Amin to ascertain the value of the property after making a physical inspection and after gathering necessary particulars. It is true that second proviso to Sub-Rule (2) of Rule 66 of Order XXI C.P.C. relieves the Executing Court from the obligation to enter its own estimate of the value of the property. However, where the Court volunteers to get the value of the property estimated, it should be on the basis of reliable material. The Ipse Dixit of the Amin or the decree holder cannot constitute the actual value.
8. When the Executing Court thought it appropriate to get the valuation, furnished by the appellant herein, cross-verified through proper sources, the easiest and most reliable method for the Court is to ascertain the same from the concerned Sub-Registrar. Such a step was not taken. Instead, the opinion from private individuals was gathered and the value furnished by the appellant was affirmed.
9. The respondent obtained Ex.A1 from the concerned Sub-Registrar in respect of the same property. It is to the effect that the value of the property as per Basic Value Register is Rs.6,31,000/-. The appellant did not dispute the authenticity or correctness of Ex.A1. The difference between the value as furnished in the sale proclamation, on the one hand, and Ex.A1 on the other is virtually incomparable. This aspect obviously weighed with the Executing Courts and to ensure fairness in the sale proceedings it had set aside the sale held on 15.2.2002 directing that fresh proceedings be initiated.
10. The contention of the learned counsel for the appellant that the objection raised by the respondent is impermissible in view of prohibition contained under Sub-Rules (2) and (3) of Rule 90 of Order XXI C.P.C. would have been accepted if it is established that the respondent was present at the time of auction or that he was aware of the value of the property as entered in the sale proclamation before the sale took place. In his chief-examination itself, the appellant stated that the respondent was not present at the time of sale. The sale notice was published in English in a daily. The respondent clearly stated in his evidence that he does not know English. The record does not disclose that there exists any other material apart from the sale notice, Ex.B4, in relation to the date of sale. Therefore, the bar contained under the provisions referred to above cannot be applied against the respondent.
11. It was elicited through the appellant himself that part of the property was subject to mortgage and the same was not indicated in relevant column in the sale proclamation. Though it was not pleaded by the respondent, it constitutes an irregularity. The fact that the appellant himself was the mortgager as regards half of the property makes the things still worse vis--vis the lapse in mentioning the same.
12. It is true that the Courts should endeavour to ensure that the claims, which are finally adjudicated, are satisfied without any loss of time. At the same time, the sales for realization of the amounts under the decrees should be held in such a way as to ensure transparency. It is not as if the appellant is put to irreparable loss if the sale is conducted once again. In the event of the property fetching the same amount in the sale that may be conducted afresh, the previous proceedings can virtually be taken to their logical conclusion. On the other hand, if it fetches any further amount, not only the claim of the appellant would be satisfied but also the respondent would be able to realize certain amount while parting with the property.
13. In the circumstances indicated above, this Court does not find any ground to interfere with the order under appeal. The civil miscellaneous appeal is accordingly dismissed. However, inasmuch as the proceedings are pending since long time, it is directed that the Executing Court shall take necessary steps in accordance with law and conclude the proceedings by the end of August 2004. It is made clear that irrespective of the value that may be furnished by the appellant, the Executing Court shall indicate the value of the property as Rs.6,31,000/-. It is also made clear that incase the bids are received for a sum less than Rs.6,31,000/-, the Executing Court may proceed with the sale and confirm it at the highest bid that is received. Office is directed to return the records forthwith.