B. SUSILA Vs. SARASWATHI AMMAL

JUDGEMENT

(1.) THIS is an appeal against an order of the learned Second Additional Subordinate Judge, Tiruchirapalli, dated 21 -4 -1965, dismissing E; A. No. 297 of 1964 in O. S. 107 of 1953. The said E. A. itself was filed by supplemental defendants 3 and 4 in 9. Section 107 of 1953, under Order 21, Rule 96, Civil P. C., for setting aside a sale of the house property sold in execution of the decree passed against them in O. S. No. 107 of 1953 on 19 -6 -1963. The sale was knocked down in favour of the first respondent for a sum of Rs. 2,05,000, on 19 -6 -1963 and the application was filed on 17 -7 -1963. In the said application, the appellants herein had taken the following three grounds for the purpose of setting aside the sale: (1) due notice of the execution or of the application to reduce the upset price has not been served on the petitioners; (2) the property has been sold for a grossly inadequate price inasmuch as the decree -holder has been able to knock off the property for a price which will be a third of its real value; and (3) that by reason of the fraud committed by the decree -holders in getting the upset price reduced, i.e., without notice to the petitioners, the property did not fetch a proper price at the sale, with the result that the sale held on 19 -6 -1963 resulted in substantial prejudice to the appellants.

(2.) THE learned Second Additional Subordinate Judge came to the conclusion that, with regard to the application filed by the decree -holder for reduction of the upset price previously fixed, the appellants herein were not entitled to any notice, and therefore, there was no irregularity or illegality in the conduct of the sale. With regard to the second point, the learned Judge came to the conclusion that the property was not sold for an inadequate price and consequently the appellants herein had not suffered substantial injury on account of any irregularity in the matter of the publication of sale as contended for on their behalf.

(3.) , Learned counsel for the appellants contended that, since the upset price was fixed as part of the sale proclamation settled under Order 21, Rule 66, Civil P. C., the appellants are entitled to notice, whenever any change or alteration or modification is contemplated in anything that is contained in the said sale proclamation. I may straightway point out that, under Order 21, Rule 66, Civil P. C. as amended by this Court, there is absolutely no provision for the Court to fix any upset price and all that the rule requires the Court, to do is to mention the valuations of the; property as given by the decree -holder as well as by the judgment -debtor. It is open to the Court, if the circumstances of the case justify, to arrive at its own valuation and fix the upset price; but the Court is tinder no obligation under the statute to fix the upset price. Therefore, when the Court fixes the upset price or modifies either by way of enhancement or reduction of the upset price originally fixed. It cannot be said that the Court is acting pursuant to the obligation imposed upon it under Order 21, Rule 66. Civil P. C. Therefore, from the point of view of the provision contained in Order 21, Rule 66, Civil P. C. it cannot be said that, whenever the Court fixes the upset price or alters the upset price, it is under an obligation to give notice to the judgment debtors.