AGNES MIRANDA Vs. LOUIS DSOUZA

JUDGEMENT

(1.) HEARD learned advocates. The petitioner before me was one of the beneficiaries in respect of a property situated at mangalore wherein a decree for partition of the property had been passed and in the course of the final decree proceedings, a commissioner was appointed for purposes of selling the property and realising the value thereof. The commissioner followed the usual procedures and held a sale on 31-3-1991. This sale had been preceded by a proclamation published on 18-3-1991 in one of the local language newspapers by the name of 'mungaru'. There were 6 bidders at the auction. Even though it was one plot, the commissioner sub-divided it into 4 plots. The bids in question aggregated to Rs. 4. 17 lakhs and the commissioner put up his report to the court for approval of the auction sale. At that stage the present petitioner raised certain objections, all of which are basically procedural in nature. Briefly stated, it was contended that the auction had not been properly publicised insofar as it ought to have been published in one of the four prominent local newspapers which would have come to the notice of more members of the public; that the auction had not been held at the spot itself but it was held at the commissioner's office; that the time period of 15 days between the proclamation and the actual sale was not observed insofar as only 13 days had elapsed and further more, that the proclamation had not been publicised at the court, municipal office etc. And lastly,as a result of this State of affairs that the price that was realised was very much below the market price which that property ought to have fetched. The learned judge heard the parties and recorded a finding that the objections canvassed were mainly procedural and further more that they were not of sufficient consequence to justify the setting aside of the entire auction and therefore dismissed the objections. It is against this Order that the present civil revision petition has been filed.

(2.) THE petitioners' learned Advocate has based hissub missions on one aspect of the matter namely that even though this is a final decree proceeding, that Section 7 (b) of the partition ACT virtually requires the court to follow the procedure that is analogous to the one in execution proceedings. He therefore submitted that the provisions of Order 21, C. P. C. would be binding as far as the present sale was concerned. According to him, these provisions have to be read in conjunction with the Karnataka civil rules of practice which also lay down certain procedures as far as such sales go. Learned Advocate submits that the cumulative effect of this situation would be that the breaches which the petitioner had complained about taken both individually and collectively would render the sale bad and therefore it would have to be set aside.

(3.) AS against this position, it was vehemently submitted on behalf of the respondents that the objections are basically trivial and that none of them are of any consequence. The most important aspect of the matter in cases such as this, which a court would look at very seriously is as to whether the sale has resulted in a fair realisation of price for which the barometer would be the prevailing market rates. Normally, the court ascertains from the property holder as to what is his estimate and the court also looks to some independent quarters for purposes of fixing the fair value which the property must fetch. Unless this ingredient is satisfied, a court would normally not approve of the sale irrespective of all other factors. Petitioners' learned Advocate tried to emphasise the fact that having regard to the location of this property and its potentiality that the existing market value, would be between Rs. 10,000/- to 15,000/- per cent. The respondents' learned Advocate pointed out that this estimate is slightly on the higher side-but irrespective of that aspect, that there are certain factors which the petitioner has not taken stock of. The first of these is the faet that the property is tenanted and that it would therefore necessarily involve a considerable reduction in prices if settlements have to be arrived at with the tenants. Secondly, the site in question is not level with the road and this is a factor which in a bid lowers its value. Thirdly, it is pointed out that even the only water source is highly contaminated and this is a minus factor. The learned Advocate submitted that once these aspects are taken into account, that the value of the property would necessarily have to be considerably scaled down and that bearing these factors in mind, the amount of Rs. 4. 17 lakhs which was realised is basically fair and in order. I do concede that in this background and in the absence of any other cogent material that it would be rather hazardous to hold that the price realised was grossly less than the normal market value as at that point of time.