MOHAN KUMAR BURMA Vs. RAJ KISHORE MATHUR

JUDGEMENT

(1.) The present civil revision has been filed by the judgment -debtor against the order dated 9.9.1998 passed by the executing Court in connection with the valuation of the property attached under the provisions of Order 31, Rule 54 of the Code of Civil Procedure (hereinafter referred to as the 'Code') and sought to be sold in execution of the decree. 'The decree -holder had valued the immovable property at Rs. 1,13,140/ - with respect to the agricultural land and at Rs. 3,12,000/ - with respect to the homestead land along with the building. The judgment - debtor had filed objection to the valuation furnished by the decree -holder. He had raised objection that the decree -holder himself had purchased Ac.1.61 decimals of land on 17.12.1984 for Rs. 8,000/ - and, as such, the present market value of the agricultural land under attachment would be more than Rs. 10,00,000/ -. It was also submitted that there were fruit bearing trees worth more than Rs. 5,00.000/ - and the valuation of the vacant portion of the homestead would be more. The judgment -debtor had also raised objection stating that the amount of Rs. 2,25,000/ - had been deposited in the shape of N.S.C. and the present valuation of which Rs. 4,50,000/ - should have been adjusted. The executing Court by its impugned order has accepted the valuation given by the decree -holder.

(2.) ORDER 21, Rule 66, C.P.C. provides about the proclamation of sale by public auction to be made where any property is ordered to be sold by public auction. Sub -rule (2) of Order 21, Rule 66, C.P.C. is quoted hereunder : '66. Proclamation of sale by public auction - XX XX XX(2) Such proclamation shall be drawn up after notice to the decree -holder and the judgment -debtor and shall state the time and place of sale and specify as fairly and accurately as possible - (a) the property to be sold or, where a part of the property would be sufficient to satisfy the decree, such part; (b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government; (c) any incumbrance to which the property is liable; (d) the amount for the recovery of which the sale is ordered; and (e) every other thing which the Court considers material for a purchaser to know order to judge of the nature and value of the property : Provided that where notice of the date for settling the terms of the proclamation has been given to the judgment -debtor by means of an order under Rule 54, it shall not be necessary to give notice under this rule to the judgment -debtor unless the Court otherwise directs : Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale of its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given by either or both the parties.' The second proviso makes it clear that it is not necessary for the Court to enter in the proclamation of sale estimate of the value made by the Court. However, the proclamation should include the estimate given by either or both the parties. Such position becomes clear in view of the decision reported in AIR 1973 SC 2593 (Gajadhar Prasad and Ors. v. Bahu Bhakta Ratan and others). It is profitable to refer paragraph 15 of the said decision which is extracted hereunder : '15. A review of the authorities as well as the amendments to Rule 66(2) (e) make it abundantly clear that the Court, when stating the estimated value of the property to be sold, must not accept merely the ipso dixit of one side. It is certainly not necessary for it to state its own estimate. If this were required, it may, to be fair, necessitate insertion of something like a summary of a judicially considered order, giving its grounds, in the sale proclamation which may confuse bidders. It may also be quite misleading if the Court's estimate is erroneous. Moreover, Rule 66(2)(e) requires the Court to state only the facts it considers material for a purchaser to judge the value and nature of the property himself. Hence, the purchaser should be left to judge the value for himself. But, essential facts which have a bearing on the very material question of value of the property and which would assist the purchaser in forming his own opinion must be stated. That is, after all, the whole object of Order 21, Rule 66(2)(e), Civil Procedure Code. The Court has only to decide W/hat all these material particulars are in each case. We think that this is an obligation imposed by Rule 66(2)(e). In discharging it, the Court should normally state the valuation given by both the decree -holder as well as the judgment -debtor where they have both valued the property; and these do not appear fantastic. It may usefully state other material facts, such as the area of land, nature of rights in it, municipal assessment, actual rents realised, which could reasonably be expected to effect valuation. What could be reasonably and usefully stated succinctly in a sale proclamation has to be determined on the facts of each particular case. Inflexible rules are not desirable on such a question.'

(3.) THE learned counsel for the petitioner submitted that the N.S.C. lying in deposit should have been first discharged. The learned counsel for the decree -holder submitted that there is no such N.S.C. available for adjustment. Without going into this aspect, it is clarified that if any N.S.C. is lying in deposit before the executing Court, the said N.S.C. may be encashed and the value thereof shall be paid to the decree - holder and the amount due may be accordingly reduced.