A U NATARAJAN Vs. INDIAN BANK

JUDGEMENT

(1.) This civil revision petition has come before us pursuant to a reference made by Ratnam, J. that the matter may be dealt with by a Bench for having an authoritative pronouncement on the question enunciated below: "Whether an executing court has no power to fix the upset price for the sale of property and consequently, no power as well to reduce the same?" The contention of 'the revision petitioner is that the executing Court has no power to fix the upset price and hence it has no power also to reduce the same. Ratnam, J. noticed that such a contention has been upheld by Sathiadev. J. in Kanniayan v. Chidambaram Finance Corporation, C. R. P. No. 2791 of 1979 of this court dated 11-1-1980. 1980 TNLJ 33; Betha Gounder v. Dharmasubrariania Iyer, C. R. P. No. 1277 of 19-77, D/- 22-61978 and Kamadhenu Bailings v. Secretary Guruvavur Temple Renovation Committee, Kerala, C. R. P. No. 1127 of 1978, D/- 22-7-1978. The referring Judge also noticed that Ramanuiam. J. in Ramaswami Gounder v. Subramania Iyer, C. R. P. No. 163 of 1979. D/- 12-21979 and Nainar Sundaram, J. in K. A. Raiu v. Sivaprakasam. C. R. P. No. 1536 of 1979. D/- 31-8-1979, have taken a contrary view and held that the fixation of upset price would not automatically invalidate the order directing the sale of the propertlt4Hnd that even after the amendment of 0. XXI, R. 66 C. P. Code, by Act 104 of 1976, the power of the executing court to fix the upset i3rice, in appropriate cases, is not taken away. It is with regard to the diversity of views expressed in the decisions referred t9 above, the learned single Judge directed the papers to be placed before the Honourable the Chief Justice for referring the matter to a Bench and that is how the matter is before us.

(2.) Mr. V. Natarajan learned counsel for the petitioners, besides bringing to our notice the orders of Sathiadev. J. and certain other decisions, also laid emphasis on the amendment made to O. XXI, R. 66 C. P. Code, by Act 104 of 1976. Mr. G. Venkataraman, learned counsel for the respondents. countered the arguments of Mr. Natarajan by relying on a catena of decisions including those of Ramanuiam, J. and Nainar Sundaram. J. referred to above. in which a different view has been taken.

(3.) For a proper understanding of the controversy, it is necessary to refer to O XXI, Rule 66 (2) C, P. Code, as it originally stood and the changes made by several amendments besides the pronouncements of Courts from time to time. Originally, Rule 66 (2) of Or. XXI read as follows -