K Veerraju vs Sarvasiddhi Vijaya Kumar,
2022 Latest Caselaw 6280 AP

      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

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

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.

Dr. VRKS, J C.R.P.No.1557 of 2019

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

2000 (1) ALT 472

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

AIR 1981 Madras 151

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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

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

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

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

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