SIVATHI AMMAL Vs. ARULAYEE AMMAL

JUDGEMENT

(1.) THIS petition is filed by the judgment-debtor against the order of the learned district Munsif of Paramakudi in E. A. 366 of 1972 in E. P. 27 of 1972 in O. S. No. 163 of 1963. E. A. 366 of 1972 was filed by the respondents herein for permission to bid and set off. The suit is one for partition and the decree-holders are entitled to certain shares and as the judgment-debtor committed default in payment of certain money which she was directed to pay to equalise her shares, the execution petition was taken. In granting leave to the respondents herein to bid and set off, the Court considered the upset price. In the counter to the execution petition the judgment-debtor stated that the property in worth Rs. 10,000. In the application for permission to bid and set off, the judgment-debtor stated that the property was worth Rs. 12,000. The Court declined to accept that there was any increase in the value. It observed that 'it has been ordered in the execution petition that the bid has to be begun from the defendants' value viz. Rs. 10,000. " The lower Court held that as there were no bidders on the first occasion, the judgment-debtor would not be prejudiced by granting permission to the decree-holder to bid and set off.

(2.) THE learned counsel for the petitioner judgment-debtor submitted that it has been the established practice to grant permission to the decree-holder to bid and set off only if there were no bidders in the prior two sales. Order XXI, Rule 72 (1)provides-"no holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property. " sub-rule (2) provides that where a decree-holder purchases with such permission the purchase money and the amount due on the decree may be set off. Sub-rule (3) provides that where the decree-holder purchases by himself or through another, without such permission, the court may set aside the sale and direct the costs of the application and any deficiency of price which may happen on the resale and all expenses to be paid by the decree-holder. Rule 199 (1) of the Civil rule of Practice provides-"an application for leave to bid at the sale shall be supported by an affidavit setting forth any facts showing that an advantageous sale cannot otherwise be had. . . . . . . . . . . " it will be seen that Order XXI Rule 72, as well as Rule 199 of the Civil Rules of practice safeguards the interests of the judgment-debtor. The Court itself is bound to consider the facts of the case and grant permission to the decree-holder to bid or purchase the property. In doing so, the Court will have to be satisfied that unless by granting permission to the decree-holder, an advantageous sale cannot otherwise be had. It has been held that though Order XXI, Rule 72, C. P. C. and rule 199 of the Civil Rules of practice do not provide for notice to the judgment-debtor, it is necessary that the judgment-debtor, it is necessary that the judgment-debtor should be given notice in order to enable to the Court to satisfy itself that an advantageous sale cannot otherwise be had and to decide whether permission should be granted to the decree-holder or not. It is expected that great caution should be exercised by the Court before leave is granted to the decree-holder to bid and set off.

(3.) IN Seonath Doss v. Janki Prosad Singh, (1889) ILR 16 Cal 132, it was held that permission to mortgagee to bid should be very cautiously granted and, only when it is found, after proceedings with a sale that he purchased at an adequate price can be found, and even then, only after some enquiry as to whether the sale proclamation has been duly published. The two safeguards insisted upon by the Calcutta High Court are that the Court should be satisfied that no purchaser at an adequate price can be found and that the sale proclamation has been duly published. The decision was considered by the Privy Council in Md. Mira Ravuthar v. Savvasi Vijaya Raghunatha Gopalar, (1900) ILR 23 Mad 227 (PC ). It observed 'indeed it laid down such conditions as would make the granting of leave a very rate thing instead of being, as their Lordships believe it is, a very common thing. " the conditions laid down by the Calcutta High Court were not accepted by the madras High Court. In Varadharajulu Pillai v. Chendapodi Nanniar Krishnaswami Nayudu J. observed as follows:-" though I am not in entire agreement with the conditions laid down by the learned Judges in the Calcutta case. . . . . . . . . I am however of opinion that the power to grant leave to bid must be cautiously exercise and unless the Court is satisfied from the circumstances shown in the affidavit that otherwise in advantageous sale could not be obtained, no such leave should be granted. " the view of the learned Judge is strictly in accordance with the requirements of O. XXI R. 72, C. P. C. and Rule 199 of the Civil Rules of Practice. The condition is that before granting leave to bid the Court must be satisfied from the circumstances stated in the affidavit that otherwise an advantageous sale could not be obtained. It must be noted that the learned Judge has not laid down that leave to bid should not be granted on the first occasion itself.