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Andhra Pradesh High Court
Judges : M.JAGANADHA RAO
T.E.GEORGE - Appellant
Versus
KULAPAKA SAMBAMURTHY - Respondent
Decided On : 01-01-84
ORDER 21, RULE 54 (1A), CPC - NOTICE TO JUDGMENT-DEBTOR - VALUATION OF PROPERTY - PROVISO TO ORDER 21, RULE 66 (2), CPC - APPLICABILITY - COURT'S FAILURE TO COMPLY WITH MANDATORY PROVISIONS - EFFECT.
Fact of the Case:
The petitioner, a judgment-debtor, filed an application under Section 47, CPC, seeking valuation and mention of the market value of the property before it was put to sale. The court below rejected the application on the ground that the petitioner had not raised any objection at the stage of Order 21, Rule 54 (1a), CPC, and that the application was belated. The petitioner challenged this order in revision, contending that he was not served with the notice contemplated by Order 21, Rule 54 (1a), CPC, and that he did not have an opportunity to mention his valuation at the time of service of the notice of attachment.
Finding of the Court:
The court held that the trial court erred in rejecting the petitioner's application under Section 47, CPC, as the petitioner was not given an opportunity to participate in the settlement of the sale proclamation at the stage of attachment notice under Order 21, Rule 54 (1a), CPC. Therefore, the provisions of the first proviso to Order 21, Rule 66 (2), CPC, could not be put against the judgment-debtor.
Issues: 1. Whether the provisions of Order 21, Rule 54 (1a), CPC, were complied with? 2. Whether the judgment-debtor was precluded from mentioning his valuation of the property subsequently and before the sale was held?
Ratio Decidendi: 1. The court held that the trial court failed to comply with the mandatory provisions of Order 21, Rule 54 (1a), CPC, as the notice issued under Order 21, Rule 54, CPC, did not contain the requirement for the judgment-debtor to attend court to take notice of the date fixed for settling the terms of the proclamation of sale. 2. The court held that the petitioner could not be denied the opportunity to provide his valuation at the stage of attachment as well as before the sale, and that the illegality in not giving such notice at the stage of Order 21, Rule 54 (1a), CPC, fell within Section 47, CPC.
Final Decision: The court allowed the revision petition, set aside the order passed in E. A. No. 440/83 on 25-4-1983, and consequently, the consequential sale held on 25-4-1983. The parties were relegated to the stage of Order 21, Rule 54 (1a), CPC. The court directed the lower court to permit the decree-holder to withdraw the decretal amount deposited by the judgment-debtor and determine any further amount to be paid by the judgment-debtor to the auction purchaser or the decree-holder.
( 1 ) A question relating to the application of the new provision introduced in Order 21, Rule 54 (1a) CPC arises in this revision.
( 2 ) THE petitioner in this revision petition is the judgment-debtor. He filed an application E. A. No. 440/1983 under Section 47, CPC in E. P. No. 178/82 in O. S. No. 1425/80 in the Court of the District Munsif, Visa-khapatnam. The relief claimed in that application was for estimating and mentioning the market value of the E. P. Schedule property before the same was put to sale. The property was a building in Visakhapatnam town in an extent of about 300 square yards and it is a terraced building. The amount due under the execution petition is Rs. 10,233-75. On 18-4-1983 the Court below rejected the application filed by the judgment-debtor for valuation of the property and proceeded with the sale. This revision is directed against the order refusing to value the property and state the judgment-debtor s value in the sale proclamation.
( 3 ) THIS revision was filed in this Court on 23-5-1983 and the sale having been held on 25-4-1983 the petitioner asked for stay of confirmation of sale. In CMP No. 5465 of 1983 this Court granted stay of confirmation of sale on 24-5-1983 on condition that the petitioner deposited the entire decretal amount of Rs. 10,233/-within a period of six weeks. There is no dispute that the petitioner has complied with that order by depositing the entire amount due under the execution petition within that time.
( 4 ) IT may be noted that the court below rejected the application filed by the judgment-debtor on the ground that the attachment notice under Or. 21, R. 54 CPC was served on the petitioner on 30-4-1982 wherein the value of the amin was mentioned as Rs. 1,000,00/- (one lakh), that proclamation notice under Or. 21, R. 54 regarding attachment was also served on him on 30-4-1982, and that therefore if the petitioner considered the said valuation to be quite low nothing precluded him from filing an application under Section 47, CPC on the very next day instead of filing the present E. A on 28-3-1983. The learned District Munsif also noticed that the petitioner has filed another application for the appointment of a Commissioner for assessment of the value. In effect the learned District munsif felt that the application under Section 47, CPC was belated.
( 5 ) IN paragragh 6 of the order the learned District Munsif referred to the provisions of Order 21, Rule 54 (1a) CPC and stated as follows :"the Order shall require the judgment-debtor to attend court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale. "and came to the conclusion that the petitioner did not raise any objection at the stage of Order 21, Rule 54 (1a), CPC. The learned District munsif also referred to the decision of this Court in Kummathi Narayanappa vs. Talari Akkulappa for the proposition that the procedure contemplated by Order 21, Rule 54 (2), CPC was mandatory. However, in view of the finding that the judgment-debtor did not object earlier i. e. , at the stage of Order 21, Rule 54 (1a), the learned District Munsif rejected the application and proceeded with the sale.
( 6 ) IN. this revision it is contended by Sri G. V. Seetharamarao representing Sri M. Venkata Rao, the learned counsel for the petitioner that the proceedings of the court would show that the petitioner was not served with the notice contemplated by Order 21, Rule 54 (1a), CPC and that the petitioner did not have any opportunity of mentioning his valuation at the time of service of the notice of attachment and that therefore the proviso to Order 21, Rule 66 (2), CPC cannot be invoked against the petitioner judgment-debtor by the decree-holder. In other words the contention is that only in case where the judgment debtor is given a notice under Order 21, Rule 54 (1a), CPC can the decree-holder or auction purchaser invoke the provisions of the proviso to Order 21,
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