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SUPREME COURT OF INDIA
K.K. MATHEW AND M.H. BEG, JJ.
Gajadhar Prasad and others, Appellants
Versus
Babu Bhakta Ratan and others. Respondents.
Civil Appeal No. 1648 of 1967, D/- 14-8-1973
-omission however is merely an irregularity - Gajadhar Prasad v. Babu Bhukra Ratan, AIR 1973 SC 2593. The duty to consider what particulars should be inserted in the sale proclamation and how the sale ought to be conducted should be performed judicially and reasonably. If the execution court does not apply its mind or give any consideration whatsoever to the objections of the judgment-debtor, it would be a material irregularity.
-sub-rule (2) (e) requires the Court to state only the facts it considered 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 informing his own opinion must be stated. This is, after all, the whole object of Order 21, Rule 66 (2) (e), of the Code. The Court has only to decide what all these material particulars are in each case. This is an obligation imposed by this rule. 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 this do not appear fanatic. It may usefully state other material facts, such as the area of land, nature of rights in it, municipal assessment, actual rents realised, which can 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 - Gajadhar Prasad v. Babu Bhakta Ratan, AIR 1973 SC 2593. It is not necessary for the execution court to order the insertion of a judicially passed order in the sale proclamation itself, but it should pass an order showing that it applies its mind to the need for determining all the essential particulars, which would reasonably be looked for by a purchaser, and should be inserted in the sale proclamation. The order should show that it considered the objections, if any, of the decree-holders or the judgment debtors, as the case may be. It should not merely accept unhesitatingly the ipse dixit of one side. The executing court should perform its duty fairly and reasonably.
-the executing court should apply its mind or gives considerations to the objections of the judgment-debtor
Judgment
BEG, J.:- This is a judgment debtors appeal by Certificate of fitness of the case for appeal to this Court granted by the High Court of Allahabad, arising out of an application filed under Order 21, Rule 90, Civil Procedure Code.
2. The Respondent decree-holders had obtained a decree for about Rs. 76,000/- against the appellants in a mortgage suit. In execution of that decree sales of three items of property, shown as houses belonging to the judgment debtors took place on 5-5-1955 and 7-5-1955. The items were described as follows in the sale proclamation :
"Boundaries
East West North South
1. Pucca built house bearing previous No. 8 and present No. 5 situate in Colonelgunj, city of Allahabad, together with site and building Materials entire 16 anna share value at Rs.6,350/-. University Road Lane and temple of Kaliji House of Marium Bibi & Mohd. Raza Colonel Ganj Road
2. Entire house bearing previous No. 805 situate in Mohalla Katra, Pasiyana City of Allahabad, valued at Rs. 5040/-. House of Gajadhar Prasad Lane here after House of Maheshwary Prasad Vakil Bungalow House of Gajadhar Prasad Way
3. Bungalows bearing Nos. 8 and 10, situate on Club Road, City of Allahabad with compound plot No. 129 together with trees, four walls and outhouses etc. with all things, rights and interests appertaining to bungalows the site land whereof has been acquired on lease dated 20-11-1948 and which lies within the same boundary. Bungalow No. 8 valued at Rs. 24.000/ Bungalow No. 10 valued at Rs. 31,200/-. Lyal Road Bunglow No. 12 Thornhill Road Club Road
There is no encumbrance ."
3. The main objection of the judgment debtors appellants to this proclamation is that the execution Court had, in giving the valuation of the properties in the proclamation, practically accepted the statements made an behalf of the decree-holders, and, without assigning any reason, failed to mention the values put by the judgment-debtors on these properties. The respective valuations of the properties by the two sides were:
"1. No. 10 T. B. Sapru Road Valuation put by the Valuation put by the
2. To. 8 T. B. Sapru Road D. H. 40,000/-. J. D. 1,00,000/-.
3. No. 5 Colonelgunj 10,000/-. 60,000/-.
4. No. 805 Katra. 1,000/-. 25,000/-."
4. On 18-5-1948,long before the proclamation of sale was drawn up on 31-3-1955, the judgment debtors had put in an objection to the execution Court s order of 14-2-1948 relating to the framing of the sale proclamation. particularly with regard to the two bungalows situated in the heart of the Civil Lines, the best residential area of Allahabad. They had stated that the area or land in the compound in which the two bungalows were situated was three acres and that the whole property was not worth less than Rupees one lac. They had objected to the sale of the two bungalows in one lot. They had also asserted that the latest municipal assessment of 1944 had displaced the municipal assessment of l934 relied upon by the decree-holder. According to the judgment-debtors, the two bungalows Nos. 8 and 10 on Tej Bahadur Sapru Road were assessed at annual rents of Rs. 1500/- and Rs. 1200/- per year. In an affidavit of 19-4-1947 they had asserted that a bungalow situated nearby, assessed at an annual rent of Rs. 1500/-, was sold for Rs. 50,000/- on 23-4-45 when prices were lower. On 18-5-1948, the judgment-debtors had also prayed for the issue of commission, at their expense, presumably to view the property and give a report on relevant facts before actually framing a sale proclamation in accordance with the court s order of 14-2-1948 directing insertion of the value made by it.
5. On 5-5-1955, the Court Amin had himself put up house No, 5 situated in Colonelgunj, Allahabad separately for sale and sold it for Rs. 10,500/-. On the same date, the Amin sold house No. 5-A in Colonelgunj for Rs. 8500/- and also house No. 5-B separately for Rs. 7,000/-. Thus, a total amount of Rs. 26,000/- was realised from the sale of the three houses in one compound at Colonel
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