THIRUVENGADASWAMI AIYANGAR Vs. GOVINDASWAMI UDAYAR

JUDGEMENT

(1.) The judgment-debtor under a mortgage-decree directing the sale of mortgaged properties has raised the question in controversy in two forms - in the form of a Civil Miscellaneous Appeal and in the form of a Civil Revision Petition. The main point relates to the duty of the executing Court with regard to the determination of the market value of the property ordered to be sold. The complaint before us was that the lower Court was wrong in not determining for itself the market value of the property for the purpose of the same being inserted in the proclamation of sale and further in directing that in the proclamation of sale the valuation of the property as stated both by the decree-holder and the judgment-debtor as well as that reported by the Commissioner appointed in the case should be set out without indicating any determination by the Court itself.

(2.) We shall later on refer to the argument that was specially addressed to us with regard to this manner of setting out in the proclamation of sale various estimates made by different parties or persons. Mr. K. Section Krishnaswami Aiyangar, the learned Counsel for the appellant, assumed for the purpose of his argument that the Court executing the decree was bound to determine and set out in the proclamation of sale the valuation of the property as arrived at by itself. Our attention in this connection has been drawn to the judgment of their Lordships of the Judicial Committee of the Privy Council in the case of Saadatmand Khan v. Phul Kuar (1898) I.L.R. 20 All. 412 : 25 I.A. 146 (P.C.) and also to that decision having been regarded by many Courts in India as laying down such an obligation on the part of the Court. It seems to us impossible to regard the judgment of their Lordships as comprehending any such proposition. When their Lordships referred to the statements being made gratuitously either by the decree-holder or the Court, there can be no doubt that their Lordships did not consider that there was any obligation on the Court to fix any such value. It seems to us that what their Lordships decided in that case was merely that it is a material irregularity in the conduct of the sale, if it should be found that the market value of the property set out by the Court in the proclamation of sale should be grossly inadequate or incorrect. It is difficult to spell from the judgment of their Lordships a proposition that the Court is under any obligation to determine the market value of the property and set out the same in the proclamation of sale. It is one thing to say that if the Court should launch on the process of determining the market value and set it out for the information of the intending purchasers, it should do so correctly, and another thing to state that it is under any obligation at all to determine and fix the market value of the property. We do not see that the question was raised or discussed before their Lordships or that the decision can in any wise be regarded as one on this aspect of the question.

(3.) It may also be observed that in all the judgments in this country whenever a similar view seems to have been taken it was done without any argument or discussion. The question then has to be and indeed could be determined only with reference to the provisions in the Civil Procedure Code relating thereto. Sub-clause (e) of Section (2) of Rule 66 of Order 21 of the Code provides with respect to the proclamation of sale, that the proclamation shall specify as fairly and accurately as possible every other thing which the Court considers as material for a purchaser to know in order to judge of the nature and value of the property. No other clause or sub-clause in that rule has any reference either directly or indirectly to the value of the property. Sub-clause (e) is therefore the only clause which has to be looked at. When the legislature speaks of the purchaser judging of the nature and value of the property the implication is not unreasonable that the legislature could not have intended that the Court should do the judging for him. Again when the rule says "every other thing material for a purchaser to know in order to judge of the value," the indication seems to be clear that what the Court has to do is merely to provide all the requisite material on which the intending purchaser might form his own judgment of the value of the property. When the direction therefore is that the Court in the proclamation should furnish the materials for judging the value, the inference would appear not to be unreasonable that the legislature does not require the Court to come to any judgment itself about the value. No doubt if in any case the Court should find and fix the value, such finding and fixing may itself be regarded as material on which the intending purchaser can form his own judgment. But even that can only be by some stretch of language. It would, therefore, seem to follow that the Court itself is under no obligation whatever to fix in the proclamation of sale its own valuation of the property to be sold. Our attention has also been drawn to an unreported judgment in Civil Miscellaneous Appeal No. 345 of 1926 in which the learned Judges have held, though without much discussion, that there was no obligation on the Court to fix and proclaim the value of the property to be sold. We agree entirely with that view. There can, however, be no doubt that if a Court sets out to find and fix the value of the property for being inserted in the proclamation of sale, it must be regarded as a judicial act more especially after the amendments that have been introduced in re-enacting Section 287 of the old Code as Rule 66 of Order 21. In the present case before us, however, the complaint is not that the Court fixed a wrong valuation, but being bound to fix a proper valuation it has not itself fixed any value but merely directed that in the proclamation reference should be made to the estimated value of the property as stated on one side by the decree-holder and on the other by the judgment-debtor and also as fixed by the Commissioner appointed in the case. As held in the case of Arukapalli Narasimha Rao V/s. Arumilli Subbarayudu , while every order under Rule 66 of Order 21 will not amount to an order under Section 47 of the Code, some orders may so come and in such a case, no doubt, there will be an appeal. The question, when some value has been fixed by the Court, what such value should be, may possibly be contended to be a question arising between the parties relating to the execution of the decree. The matter is not by any means free from difficulty but when the Court did not mean or purport to fix any value, it is impossible to say that any such question arises. Having regard therefore to the manner in which the lower Court has treated the matter, it cannot possibly be inferred that any question between the parties and relating to execution of decree has arisen so as to entitle the appellant to prefer the miscellaneous appeal.