Fair consideration of objections regarding property valuation and applicability of Order 21 Rule 64 to mortgage decree

( 1 ) THE question of law involved in this revision is:"whether the provisions of order xxi, rule 64 of the Code of Civil Procedure are not applicable to the sale of mortgaged properties under execution?"

( 2 ) THE petitioner is a judgment-debtor in execution case no. 322 of 1987 arising out of o. s. no. 93 of 1980 pending on the file of the learned civil judge, udupi, dakshina kannada. The said execution is filed by the respondent for recovery of Rs. 1,03,581-74 p. Assistance of the court is required for the recovery of the said amount by the sale of the mortgaged properties set out in the preliminary decree.

( 3 ) THIS preliminary decree was passed in o. s. no. 93 of 1980by virtue of a joint memo filed by both the parties. The properties subjected to mortgage and the properties offered as collateral security are set out in the preliminary decree dated 12-9-1981, they are classified by the petitioner before the executing court as follows: (1) a rice mill building with backyard for drying. (2) a residential house with front-yard. (3) about 0. 50 acres of coconut garden and about 2 acres of wet land.

( 4 ) THOUGH the judgment-debtor raised contentions that sale ofagricultural lands cannot be held in view of the Karnataka Land Reforms Act, and the selling of the machineries and the house, hit under order 21, rule 36 (2) of the code of civil procedure, the said contentions are given up and the prayer of the petitioner is to give a direction to the executing court to sell the properties in three lots one after the other, on the principles laid down under order 21, rule 64 of the code of civil procedure.

( 5 ) THE petitioner classified the value of the properties nowunder sale by virtue of the execution petition, as hereunder: (a) a rice mill building with Rs. 2,50,000-00 backyard and machineries (b) a residential building Rs. 4,00,000-00

( 6 ) THE further grievance of the petitioner is that, the learnedcivil judge has overruled the objections with regard to the valuation and he has accepted the valuation made by the decree-holder. Therefore, the petitioner seeks direction that the learned civil judge should also mention the value of the properties as given by the petitioner and the properties shall be sold by lots one after the other.

( 7 ) IN gajadhar prasad and others v babu bhakta ratan andothers, the hon'ble Supreme Court has considered that mere mention of valuation of properties as stated by decree-holder without deciding the valuation made by the judgment-debtor if amounts to material irregularity? In para 16 of the judgment, it was held:"in the case before us, the execution court had practically accepted, as its own valuation, without indicating reasonable grounds for this preference, whatever the decree-holders had asserted about the value of the property. It did not bother to seriously even consider the objections of the judgment-debtors. We think that 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, as it did not in the case before us, apply its mind or give any consideration whatsoever to the objections of the judgment-debtor, we think a material irregularity would be committed by the execution court. 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 applied its mind to the need for determining All the essential particulars, which would reasonably be looked for by a purchaser, and which 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. We think that the execution court had not performed its duty fairly and reasonably in this case. After em