Andhra Pradesh High Court - Amravati

Lanka Venkateshwara Sastry vs Boppana Siva Rao on 22 June, 2022

Bench: B S Bhanumathi

          THE HON'BLE Ms. JUSTICE B. S. BHANUMATHI


              Civil Revision Petition no.402 of 2018

ORDER:

This civil revision petition, under Section 115 of the Code of Civil

Procedure, 1908, is filed by the unsuccessful judgment debtor assailing

the order, dated 26.10.2017, of the learned Senior Civil Judge,

Avanigadda, Krishna District, passed in E.P.No.10 of 2017 in

O.S.No.144 of 2014.

2. Heard Sri Ghantasala Udayabhaskar, learned counsel appearing

for the petitioner and Sri V.S.R.Anjaneyulu, learned senior counsel

appearing for respondent. The parties in this revision shall hereinafter

be referred to as DHr and JDr for convenience and clarity.

3. The facts, in brief, are as follows:

The DHr obtained decree in O.S.No.144 of 2014 against JDr on

29.10.2015. The JDr did not pay the decretal amount in spite of

repeated demands and therefore, the DHr filed execution petition

under Order XXI Rules 54, 64 and 66 and 82 CPC to issue notice to the

JDr and to attach the execution petition schedule property and to sell

the same showing item Nos.1 to 4 to bring the same for sale for

realization of the amount of decree.

4. The JDr filed counter contending that item No.1 to 4 of the EP

schedule property is not a vacant house site and there are permanent

constructions like two storied building and that item No.1 of the

schedule property was sold away to Malempati Krishna in the year

2009 or 2010 under registered sale deed and JDr has no salable right

BSB, J C.R.P.No.402 of 2018

over item No.1, item No.2 was already sold away to third parties, and

thus, the JDr contends that the JDr has no salable interest over item

Nos. 1 to 3 of the EP schedule properties. It is further contended that

item No.4 is not a vacant site and there is a two stair building and the

present value of the said house is Rs.70,00,000/-. Hence, the petition

is liable to be dismissed.

5. During the course of enquiry before the execution Court, exhibits

R1 to R6 were marked in favour of the JDr. No oral or documentary

evidence is adduced on the side of the DHr.

6. After hearing both sides, the execution Court allowed the petition

observing as follows:

"1. The attachment effected over Item Nos.1 to 3 of E.P Schedule property is hereby raised.

2. The attachment effected over Item No.4 of EP Schedule property is made absolute. And item No.4 of E.P Schedule property alone shall be brought to sale for realization of the amount of decree.

3. For sale papers and Encumbrance certificate of item No.4 of E.P schedule property, call by 07.11.2017."

Hence, this revision by petitioner/JDr.

7. The point for consideration is - 'Whether the impugned order is

illegal or irregular warranting interference by this Court under Section

115 CPC?

8. The revision petitioner is aggrieved by the order directing

realization of the decretal debt by attaching and selling item No.4 of

the EP Schedule property. In fact, out of four items of properties

BSB, J C.R.P.No.402 of 2018

proposed for sale, items no. 1 to 3 were held not to be sold for

realization of the decree debt. The same is not under challenge by the

DHr. It is only the order in respect of item No.4 of the schedule, the

JDr, being aggrieved by the order impugned, preferred this revision

petition.

9. The main contention is that the value of such property as shown

by the DHr is far below the actual price. Since the property which is

shown to be vacant site is in fact not a vacant site as there is a two-

storied building therein. Further, it is contended that the DHr has

intentionally shown its value at Rs.75,000/- whereas its actual value is

Rs.70,00,000/-. It is vehemently contended by the revision petitioner

that for realization of the amount of Rs.3,00,000/-, the property worth

Rs.70,00,000/- cannot be put to sale.

10. The execution Court observed that as per the decision in the

case of M.Veeranjaneyulu v. M.Saraswathamma [AIR 2004 AP 27],

it is always desirable for the courts to indicate the nature of the

property including the surroundings etc. and also the rates quoted by

the parties when the property is put to sale. Therefore, the execution

Court felt it necessary to proceed against item No.4 of the schedule

property for realization of the decretal debt. It is apropos to mention

here the observations made in the above decision at paragraphs 6, 6A

and 7 which are as follows:

6. It is necessary to have a glance at newly framed Clause 'e' of Order 21, Rule 66 of the Code of Civil Procedure, which is as under:

BSB, J C.R.P.No.402 of 2018

"value of the property as stated (i) by the decree-holder and (ii) by the judgment-debtor."

6A. The above amendment indicates that the price should be fixed by the Court as estimated by the decree- holder and also the judgment-debtor. In other words, the estimation of both the decree-holder and the judgment-debtor shall be indicated to the prospective purchaser. The Court cannot estimate on its own, particularly fixing the price as estimated by the decree- holder. It may put the judgment-debtor in a disadvantageous position. Normally, when the property was estimated at a particular price, the purchaser depending upon his need, capacity and the willingness may estimate the value of the property, brought to sale, on his own. Therefore, the best Judge to estimate the value of the property is the prospective purchaser. It is not desirable for the Courts to arrive at a particular figure on its own, particularly as quoted by the decree- holder, which is a figure on the much lower side than the figure quoted by the judgment-debtor. Therefore, it is always desirable for the Courts to indicate the nature of the properly including the surroundings etc. and also indicating the rates quoted by the judgment-debtor and the decree-holder and leave the rest to the purchaser.

7. In similar circumstances, in Gajadhar Prasad v. Bhakta Ratan [1974] 1 SCR 372, the Supreme Court had observed as under:

"We think that the duty to consider what particulars should be inserted in the sale proclamation and how the sale ought to be conducted should be performed judicially and reasonably. If the execution Court does not, as it did not in the case before us apply its mind or give any consideration whatsoever to the objections of the judgment-debtor, we think a material irregularity would be committed by the execution Court. It is not necessary for the execution Court to order the insertion of a judicially passed order in the sale proclamation itself, but, it should pass an order showing that it applied its mind to the need for determining all the essential

BSB, J C.R.P.No.402 of 2018

particulars, which would reasonably be looked for by a purchaser, and which should be inserted in the sale proclamation. The order should show that it considered the objections, if any, of the decree holders or the judgment-debtors, as the case may be. It should not merely accept unhesitatingly the ipse dixit of one side. We think that the execution Court had not performed its duty fairly and reasonably in this case. After embarking on the difficult task of valuation, it rejected the judgment-debtors' figures by merely observing that they are exaggerated and practically accepted without hesitation whatever the decree-holders submitted, but this valuation was proved to be incorrect judged by the results of auction sales taken as a whole."

11. A perusal of the record shows that the property has been

undervalued by the DHr in the execution petition. However, the same

is not binding on the execution Court. It can put the property to sale

by fixing appropriate upset value and if there is any objection as to

such value, appropriate steps can be taken before the execution Court.

When sale proclamation is issued for putting any property to sale by

auction, all the details of the property must be properly indicated.

Insofar as the observation of the execution Court to put item No.4 of

the schedule property to sale is concerned, there is no error. For all

these reasons, this Court finds that there is no merit in the revision

petition.

12. In the result, the Civil Revision Petition is dismissed.