M VARADARAJULU PILLAI Vs. GENDAPODINANNIAR

JUDGEMENT

(1.) This is a revision petition against the order of the Subordinate Judge of Salem, granting permission to the decree, holder to bid at the sale of the properties ordered in E. P. No. 140 of 1947, in O. S. No. 6 of 1941. The decree is a mortgage decree and four items of the mortgaged properties are sought to be sold by virtue of the order for sale. The decree-holder filed E. A. No. 217 of 1948 for leave to bid under Order 21, Rule 72, Civil P. C. This application is supported by an affidavit by plaintiff 1 who states in para 3 of the affidavit that if the plaintiffs are not given leave to bid in the said auction sale, the properties might be sold for a low price and they are likely to suffer loss. This allegation was denied in the counter-affidavit filed by respondent 2 (judgment-debtor) where he stated that one of the items (Item No. 1) is a talkie theatre where one can expect certainly one kind of bidders and that two persons who are able to invest more than a lakh of rupees and that the properties had not been advertised in proper places and if permission was given to the decree-holders they would knock off the properties for a bare upset price and they would be put to serious loss. On these allegations in the affidavits the learned Judge passed the following order : "No ground for not granting permission. Permission granted." It is against this order that the present revision petition is filed.

(2.) The learned counsel for the petitioner invites my attention to the provisions of Order 21, Rule 72, Civil P. C., and Rule 199 of the Civil Rules of Practice. It is clear that a decree-holder can-not bid without the express permission of the Court and under Rule 199 such a permission should be sought for and obtained on an application which shall be supported by an affidavit setting forth the facts showing that an advantageous sale cannot otherwise be had. On a perusal of the affidavit filed, I am unable to see what the circumstances are, that are alleged by the decree-holders, to call upon the Court to pass an order granting permission to bid, except the statement that if leave to bid is not given the property might be sold for a low price and they are likely to suffer loss by reason of that. Nothing is alleged in the affidavit to justify any Court to exercise its mind and come to the conclusion that an order for permission to bid asked for may be granted.

(3.) The learned counsel referred to a decision in Seonath v. Jankiprasad, 16 cal. 132, where it was observed that permission to a mortgagee to bid should be very cautiously granted and only where it was found after proceeding with a sale that no purchaser at an adequate price can be found, and even then only after some enquiry as to whether the sale proclamation has been duly published. This observation was considered by the Privy Council in Mohamed Mira Rowther v. Savvasi Vijaya Raghunatha Gopalar, 23 Mad. 227: (27 I. A. 17 P. C.), and their Lordships observed as follows with reference to that decision: