Holding

The Commissioner may fix the upset price if acting on the direction of the court, and this does not violate Order XXI Rule 66 of the CPC.

Summary

The appellant, M.L. Mubarak Basha, appealed a Madras High Court decision confirming a public auction sale of a saw‑mill property, contending that the Commissioner of the court had no authority to fix the upset price. The sale had been conducted under Order XXI Rule 66 of the Civil Procedure Code, 1908, which requires the court to draw up a proclamation specifying certain particulars, including the amount for recovery. The appellant argued that fixing the upset price is a judicial function that only the court may perform. The Supreme Court examined the language of Order XXI Rule 66 and the Madras and Pondicherry amendment, concluding that the Commissioner may fix the upset price when directed by the court, and that this does not contravene the mandatory provisions. Consequently, the appeal was dismissed and costs were awarded to the respondent.

Issues considered

Whether the Commissioner has the power to fix the upset price in a public auction sale under Order XXI Rule 66 of the CPC.
Whether fixing the upset price is a judicial function exclusive to the court.

Legislation cited

Code of Civil Procedure, 1908s. Order XXI Rule 66

Subjects

auction saleupset priceCommissionerOrder XXI Rule 66Civil Procedure Codesale proclamationjudicial functionappeal

Judgment

M.L. MUBARAK BASHA A!'ID ORS. A
l ]i;
MUNI NAIDU

JANUARY 6, 1997

(K RAMASWAMY AND G.T. NANAVATI, JJ.] B

-.(
(o,de of Civil Procedure, 1908 i Section 47-0rder 21-Rule
66-Decree-Execution-Auction sale-PdWer of Commissioner to fix the ·
upset plice in conducting the sale-Direction giveit by Executing Cowt to
Commissioner not only to conduct sale but also to fv: upset plice=Application c
for setting aside of sale on the ground that Commissioner had no power to
fv: upset plice-Rejection of-Held Rule 66 indicates in unequivocal tenns
that that is the function of tite C01M, while proclamation is drawn up, to fv:
the amount of the recovCJy for which tlit! sale is ordered and also to specify
-: such other pmticulars as are necessmy in that behalf to be matelial for the
purpose of conducting the sale-171e value of the properi)i givei1 by the decree- D
-<,
holder-Judgment-debtor and the upset plice is to be fv:ed under the residue
clause relating to w1it mies made by the High Cowt-17iere was no infraction
of tire mandatory language contained in Order XX!, Rule 66, CPC as the
Commissioner had fv:ed the upset price not 011 his own but on the directi011
of the Court itself. E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 101 of
1997.

From the Judgment and Order dated 28.8.95 of the Madras High
....
Court in L.P.A. No. 205 of 1995. F
S. Muralidhar and Ms. Neeru Vaid for the Appellants.

M.N. Padmanabhan and K.K. Mani for the Respondent.

The following Order of the Court was delivered : G
Leave granted. Heard the learned counsel for the parties.
A
This appeal by special leave arises from the Division Bench judgment
of the Madras High Court, made in LPA No. 205/1995 on August 28, 1995.
The appellant had filed a suit, viz., O.S. No. 69/1976 in the Court of H
7
'
r-

8 SUPREME COURT REPORTS [1997] 1 S.C.R.

A Subordinate Judge, Thiruvanamalai for partition and separate possession
of his 16/64 share in the plaint schedule property. A preliminary decree
passed for partition was confirmed. Before, the final decree was passed,
the property at Item No. 18 of the plaint schedule, namely, Saw Mill, was
initially brought to sale between the parties, as per the directions of the
Court; subsequently, there was a public auction thereof. In the public
B
auction, the second respondent c'ame to purchase the property for a sum
of Rs. 1,03,600. An application had been filed by the appellant under
Section 47 of C.P.C. for setting aside sale. Though several grounds had
been raised, none of them was pressed. But one ground canvassed before
the High Court and pressed for consideration before us is that the Com-
C missioner had no power to fix the upset price in conducting the sale. Since
this point was raised for the first time before the High Court, the Division
Bench has rejected the same and confirmed the sale though it was upset
by the learned Single judge Thus, this appeal by special leave.

It has been strenuously contended by the learned counsel for the
D appellants that in terms of the mandatory language used in Order XXI,
Rule 66, sub-rule (2)(d) & (e), CPC, the Commissioner has no power to
fix the upset price which is the judicial function of the Court. Therefore, it
1
goes to the root of the matter. We have given opportunity to the learned
counsel to place the necessary material before us in that behalf. Both
E parties have filed their record and also their affidavits. The only question
is : whether the Commissioner or the executing Court can fix the upset
price? Order XXI Rule 66 postulates thus :

"66. Proclamation of Sales by public auction - (1) Where any
property is ordered to be sold by public auction in execution of a
F decree, the Court shall cause a proclamation of the intended sale
to be made in the language of such Court.

(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-
G
(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,
H where the property to be sold is an interest in an estate or in part
M.L.M. BASHA v. MUNI NAIDU 9

...\ of an estate paying revenue to the Government; A
(c) any encumbrance to which the property is liable;

(d) the amount for the recovery of which the sale is ordered;
and
B
(e) every other thing which the Court considers material for a
purchaser to know in 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 c
of an order under Rule 54, it shall not be necessary to give notice
under this rule to the judgment-debtor unless the Court Gtherwise
directs ;

Provided further that nothing in this rule shall be construed as
D
...., required the Court to enter in the proclamation of sale its own
estimate of the value of the property, but the proclamation shall
include the estimate, if any, given by either or both of the parties.

(3) Every application for an order for sale under this rule shall
be accompanied by a statement signed and verified in the manner E
hereinbefore prescribed for the signing and verification of plead-
ings and containing, so far as they are known to or can be ascer-
tained by the person making the verification, the matters required
by sub-rule (2) to be specified in the proclamation.
-· (4) for the purpose of ascertaining the matters to be specified F
in the proclamation, the Court may summon any person whom it
thinks necessary to summon and may examine him in respect to
any such matters and require him to produce any document in his
possession or power relating thereto.
G
Madras and Pondicherry amendment reads - (i) In Sub-rule
(1) for "made" substitute "drawn up".

(ii) substitute sub-rule (2) as follows :

2. The term of such proclamation shall be settled in Court after H
SUPREME COURT REPORTS [1997) 1 S.C.R.

A notice to the D.H. and J.D. except in cases where notices have
already been served under Order XXI, Rule 64 and such
proclamation shall state the time and place of sale and specify as
accurately possible - (a) the property to be sold, (b) the revenue
assessed upon the estate or part of the estate where the property
lo be sold is an interest in an estate or part of an estate paying
B
revenue to the Government, (c) any encumbrance to which the
property is liable, (d) the amount for the recovery of which the
sale is ordered, (e) the value of the property as stated (i) by the
D JI. (ii) by the J .D., (t) every other thing which the Court con-
sider.s material for a purchaser to know in order to judge the nature
c and value of the property."

A reading of the above provision would in unequivocal terms indicate
that that it is the function of the Court, while proclamation is drawn up, to
fix the amount of the recovery for which the sale is ordered and also to
specify such other particulars as are necessary in that behalf to be material
D for the purpose of conducting the sale. The value of the property given by
the decree-holder-judgment-debtor and the upset price is to be fixed under
the residue clause relating to writ rules made by the High Court. The
learned Single Judge himself observed in his order that the Commissioner
who has been examined as RW-3 had stated that he had fixed the sale of
E the property and the upset price at Rs. 70,000 as was ordered by the Court
and the sixth respondent was the highest bidder in the said bid, viz., for
Rs. 95,200. He had deposited the entire amount on the said date. It is seen
that the executing Court appears to have given direction to the Commis-
sioner not only to conduct the sale but also to fix the upset price at Rs.
70,000. In that view, there is no infraction of the mandatory language
F contained in Order XXI, Rule 66, CPC as the Commissioner had fixed the
upset price not on his own but on the direction of the Court itself.

The appeal is accordingly dismissed. No. costs.

T.N.A. appeal dismissed.