Y Rupla Naika S/O Late Yamaja Naika vs Mohammed Musthafa S/O B K Iddinabba on 30 October, 2013
In Gajadhar Prasad v. Babu Bhakta
Ratan (1973) 2 SCC 629 this Court, after
noticing the conflict of judicial opinion among
the High Courts, held that a review of the
authorities as well as the amendments to
Rule 66(2)(e) make it abundantly clear that
the court, when stating the estimated value of
the property to be sold, must not accept
merely the ipse dixit of one side. It is certainly
not necessary for it to state its own estimate.
If this was required, it may, to be fair,
necessitate insertion of something like a
summary of a judicially considered order,
giving its grounds, in the sale proclamation,
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which may confuse bidders. It may also be
quite misleading if the court's estimate is
erroneous. Moreover, Rule 66(2)(e) requires
the court to state only nature of the property
so that the purchase should be left to judge
the value for himself. But, the essential facts
which have a bearing on the very material
question of value of the property and which
could assist the purchaser in forming his own
opinion must be stated, i.e. the value of the
property, that is, after all, the whole object of
Order 21, Rule 66(2)(e), CPC. The court has
only to decide what are all these material
particulars in each case. We think that this is
an obligation imposed by Rule 66(2)(e). In
discharging it, the court should normally state
the valuation given by both the decree-holder
as well as the judgment-debtor where they
both have valued the property, and it does not
appear fantastic. It may usefully state other
material facts, such as the area of land,
nature of rights in it, municipal assessment,
actual rents realized, which could reasonably
and usefully be stated succinctly in a sale
proclamation has to be determined on the
facts of each particular case. Inflexible rules
are not desirable on such a question. It could
also be angulated from another perspective.
Sub-rule (1) of Rule 66 enjoins the court that
the details enumerated in sub-rule (2) shall be
specified as fairly and accurately as possible.
The duty to comply with it arises only after
service of the notice on the judgment-debtor
unless he voluntarily appears and is given
opportunity in the settlement of the value of
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the property. The absence of notice causes
irremedial injury to the judgment-debtor.
Equally publication of the proclamation of sale
under Rule 67 and specifying the date and
place of sale of the property under Rule 66(2)
are intended that the prospective bidders
would know the value so as to make up their
mind to offer the price and to attend at sale of
the property and to secure competitive
bidders and fair price to the property sold.
Absence of notice to the judgment-debtor
disables him to offer his estimate of the value
who better knows its value and to publicise
on his part, canvassing and bringing the
intending bidders at the time of sale.
Absence of notice prevents him to do the
above and also disables him to know fraud
committed in the publication and conduct of
sale or other material irregularities in the
conduct of sale. It would be broached from
yet another angle. The compulsory sale of
immovable property under Order 21 divests
right, title and interest of the judgment-debtor
and confers those rights, in favour of the
purchaser. It thereby deals with the rights
and disabilities either of the judgment-debtor
or the decree-holder. A sale made, therefore,
without notice to the judgment-debtor is a
nullity since it divests the judgment-debtor of
his right, title and interest in his property
without an opportunity. The jurisdiction to
sell the property would arise in a court only
where the owner is given notice of the
execution for attachment and sale of his
property. It is very salutary that a person's
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property cannot be sold without his being told
that it is being so sold and given an
opportunity to offer his estimate as he is the
person who intimately knew the value of his
property and prevailing in the locality,
exaggeration may at time be possible.