THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CIVIL REVISION PETITION No.1557 of 2019
ORDER:
The decree holder has come up with this civil revision petition under Article 227 of the Constitution of India impugning the order dated 11.03.2019 passed by learned Additional Senior Civil Judge, Anakapalle, Visakhapatnam District in E.A.No.45 of 2018 in E.P.No.9 of 2015 in O.S.No.676 of 2011.
2. There are two respondents and on three occasions notices were taken out to respondents but they were returned unserved with an endorsement that there was no such addressee and thereafter, on an application moved by the revision petitioner substitute service by way of publication in newspaper was ordered on 22.02.2021 and the same was complied with and the service was held sufficient. It has to be stated that none has appeared representing the respondents.
3. O.S.No.676 of 2011 is a suit for recovery of money based on the foot of a promissory note dated 15.11.2010 filed by one plaintiff against two defendants and the same was tried and the decree was passed in favour of the plaintiff on 31.01.2012. Since the decree directions were not complied with, the winning 2 Dr. VRKS, J C.R.P.No.1557 of 2019 plaintiff filed E.P.No.9 of 2015 in O.S.No.676 of 2011 under Order XXI Rules 64 and 66 C.P.C. to bring the E.P. schedule immovable property for sale towards realization of decree debt along with interest and costs. The property sought to be sold out in public auction is vividly described in the schedule of the execution petition and the property is a vacant site in an extent of 200 square yards in RS.No.261 in Sabbavaram Gram Panchayat of Sabbavaram Agraharam Village of Visakhapatnam District. Decree Holder has given his own estimation of value of this property at Rs.2,00,000/-. It seems that the Amin deputed by the Court valued the property at Rs.3,00,000/-.
4. Learned counsel for revision petitioner submits that after following due procedure, the property was put for auction but the bidders were not forthcoming since price fixed by the executing Court was on higher side. It was in those circumstances, the decree holder moved E.A.No.45 of 2018 in E.P.No.9 of 2015 in O.S.No.676 of 2011 under Order XXI Rule 66(2)(e) read with Section 151 C.P.C. In this execution application, the decree holder has stated that the amount covered by the decree is Rs.3,00,000/-. The total amount claimed in the execution petition, which consists of subsequent 3 Dr. VRKS, J C.R.P.No.1557 of 2019 interest and costs, would come to Rs.3,69,018/-. That the property situated in a remote area and its market rate is very low and it is less than Rs.2,000/- per square yard. By that execution application he requested the Court to consider those facts and to fix the market value at such rates and then proceed for auction sale of the immovable property. That matter was taken up for enquiry and the respondents/J.Drs. did not choose to appear and contest that application and therefore, they were set ex parte. After hearing the submissions on both sides and on considering the material, the impugned order was passed by the learned Additional Senior Civil Judge, Anakapalle and by the impugned order it dismissed the said application. The reasons that prompted the executing Court could be seen in para Nos.7 to 9. The executing Court recorded that the market value of the execution petition property was Rs.1,300/- per square yard in the year 2011. However, by the time the sale proclamations were ordered, its value was found to be around Rs.8,00,000/-. It was in those circumstances, it took the view that Rs.8,00,000/- should be fixed up as market value for the purpose of putting the property for sale.
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5. That order is assailed in this revision stating that the material placed before the executing Court would indicate that the market value was less than Rs.2,000/- per square yard and the valuation made by Sub-Registrar, which was considered by the executing Court, do not really match with the market price for such remotely located property and the learned executing Court failed to exercise its discretion and failed to follow the law cited before it.
6. Before the executing Court, this revision petitioner cited a judgment of this Court in N.Mohana Kumar Vs. Bayani Lakshmi Narasimhaiah1. At para No.9 of the impugned order, the learned executing Court made a mention of this legal authority and then it did not state as to what was held by this Court in that judgment and how it could not really follow the principles laid down in that decision, but it simply stated that the said ruling has no application to the facts. Thus, the revision petitioner is right in asking before this Court that the learned executing Court failed to notice the principles relevant for the purpose of deciding the issue before it. In that view of 1 2000 (1) ALT 472 5 Dr. VRKS, J C.R.P.No.1557 of 2019 the matter, this Court shall hold that there is clear infirmity in the impugned order.
7. During the course of hearing of this revision, learned counsel for revision petitioner also placed reliance on a judgment of the Madras High Court in Dr. A.U. Natarajan Vs. Indian Bank, Madras2.
8. One fact that has to be borne in mind in deciding this revision is the submission of the learned counsel for revision petitioner that the auction sale could not be materialized because the upset price fixed by the Court is at a higher level and no bidder was forthcoming. Precisely it is that context which shall be borne in mind by the executing Court when it handles the process of auction sale. It is in this regard the two legal authorities cited earlier gain prominence and they should have been considered by the executing Court.
9. As one could see in an auction sale conducted by a Court the value of the property should be mentioned and the valuation as disclosed by D.Hr. and as disclosed by the J.Drs. shall find place in the sale proclamations. In the case at hand in the 2 AIR 1981 Madras 151 6 Dr. VRKS, J C.R.P.No.1557 of 2019 execution petition as well as in execution application, the J.Drs. have not been making their presence and contest and they did not choose to furnish their valuation of the property. Therefore, what was available with the executing Court was the valuation furnished by decree holder. An auction sale in the Court is one where the Court conducting it must see that the best price for the property is realized so as to avoid avoidable harm to the J.Drs. At the same time, the executing Court shall also bear in mind that a Court auction sale cannot be equated with a normal private bid among parties and fewer people alone would be inclined to take the risk of further litigation since there is no warranty of title and therefore, it is a matter of common knowledge that sales in a Court do not fetch price which is equal to price that is normally available in private sale transactions. The executing Court must be pragmatic in its approach. It is for that reason as a primary rule law has not mandated the executing Court to make its own valuation of the property. Order XXI Rule 66 C.P.C. requires the parties to put forth their estimates of the value and there is a specific mention that the Court shall not require to enter its own estimate of the value of the property. It is only when decree holder moved an 7 Dr. VRKS, J C.R.P.No.1557 of 2019 application seeking leave to bid. Rule 277 of the Andhra Pradesh Civil Rules of Practice and Circular Orders, 1980 requires the Court to fix up an upset price telling the D.Hr. that he should not bid for a sum less than the sum the Court is going to fix. The impugned order does not say whether the D.Hr. moved any such application seeking to bid in the auction. No submission in this regard is made by the learned counsel for revision petitioner before this Court. Be that as it may. It is to be seen that when valuation is given by both sides, the sale shall commence at the price mentioned by J.Dr. and in the absence of bidders, the price will have to be progressively brought down till it reaches the figure given by the decree holder and thereafter, the bid may raise and accordingly, as per the availability of bidders, the price could be raised up. In the event of absence of sufficient bidders on an application of the decree holder, a lower price could be fixed up as an upset price by the Court. It has to be borne in mind that upset price for a property is different from value of the property. These principles could be seen from the earlier cited judgment in Dr. A.U. Natarajan's case (supra 2). The reduction of upset price for want of bidders cannot be considered as material irregularity is the law that 8 Dr. VRKS, J C.R.P.No.1557 of 2019 could be noticed in the earlier mentioned judgment in N.Mohana Kumar's case (supra 1). It is in the context of above principles, the executing Court was expected to keep in mind the upset price and it should not have guided itself only with the market value certificate obtained from the Registration Department. At what price the auction sale shall begin and at what price the property could be sold have to be practiced based on the ground realities on a given day.
10. The approach of the learned executing Court in considering only the market value certificate given by the Sub- Registrar is incorrect and therefore, the impugned order cannot be sustained. It has to be borne in mind that a debt that was contracted in the year 2010 resulted in a suit in the year 2011 and the decree is of the year 2012 and the same remained unfulfilled for the winning party and the prayer for a pragmatic approach was not properly considered by the executing Court and therefore, it has to be stated that the decree holder suffered injustice requiring interference from this revisional Court. The impugned order has to be set aside.
11. In the result, the Civil Revision Petition is allowed setting aside the order dated 11.03.2019 passed by learned Additional 9 Dr. VRKS, J C.R.P.No.1557 of 2019 Senior Civil Judge, Anakapalle, Visakhapatnam District in E.A.No.45 of 2018 in E.P.No.9 of 2015 in O.S.No.676 of 2011. The executing Court shall take up further steps in fixing the value of the property and fixing the upset price bringing property for sale while keeping in mind the well established principles available, which include the principles stated in the earlier parts of this order. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 07.09.2022 Ivd 10 Dr. VRKS, J C.R.P.No.1557 of 2019 THE HON'BLE SRI JUSTICE Dr. V.R.K.KRUPA SAGAR CIVIL REVISION PETITION No.1557 of 2019 Date: 07.09.2022 Ivd