D.S.R. Varma, J.
1. The order, dated 3.12.2003 passed by the Additional Senior Civil Judge, Kurnool, in E.P. No. 354 of 2002 in O.S. No. 73 of 1994 is hereby challenged.
2. Heard the Counsel for the petitioner. The Counsel for the respondent is not present.
3. The petitioner is the judgment-debtor and the respondent is the decree-holder.
4. For the sake of convenience, the petitioner and the respondent will be hereafter referred to as "the judgment-debtor and the decree-holder" respectively.
5. From the impugned order, it appears that the sale publication was filed on the date of passing of the impugned order. Both the Counsel representing the decree-holder and judgment-debtor were also present on that day and it appears that the judgment-debtor was willing to pay a sum of Rs. 10,000/- and sought for adjournment of the sale. Since the decree-holder did not agree for the same, the Court below proceeded with the sale. It is also pointed out in the impugned order that the E.P. schedule does not contain the market value and the valuation of the officer of the Court was on record as Rs. 2,00,000/-. Accordingly, the upset price was fixed as Rs. 2,00,000/-and on the same day, the sale was conducted in the open Court and the auction was knocked down in favour of the decree-holder.
6. The contention of the learned Counsel for the petitioner is that he was not served with any notice about the sale proclamation and that he had no opportunity to file his objections as well as the valuation of the property.
7. In a decision of the apex Court in Gajathar Prasad v. Bhakta Ratan, , which was followed in Desh Bandhu Gupta v. N.L. Anand and Rajinder Singh, , the principle laid down was that the Court should indicate the value assessed by the judgment-debtor, decree-holder and the officer of the Court and leave the rest to the prospective purchaser. In other words, the best judge would be the purchaser. It is because sometimes the decree-holder would undervalue the property and in such cases, the judgment-debtor is deprived of filing all his objections, particularly regarding the valuation of his property, which is going to be brought for sale.
8. In this regard, for a ready reference, the first proviso to Sub-rule (2) of Rule 66 of Order 21 of the Code of Civil Procedure (in short "the Code") is extracted as under:
"Where notice of the date for settling the terms of the proclamation has been given to the judgment-debtor by means of an order under Rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs."
9. This proviso was introduced by Act 104 of 1976 to the Code of Civil Procedure. From the above proviso, it is clear that notice of the date of settling the terms of proclamation has to be given to the judgment-debtor by means of an order under Rule 54 of Order 21 of the Code. There is no necessity to give a fresh notice under this rule to the judgment-debtor. The second proviso to Sub-rule (2) of Rule 66 is as under:
"Nothing in this rule shall be construed as requiring 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."
10. The second proviso makes it clear that the Court is not at an obligation to enter in the proclamation of the sale on its own estimation of the value of the property, but it is incumbent upon the executing Court to indicate the estimation, if any, made by both the parties.
11. Therefore, it is to be construed that no doubt the procedure under Clause (b) to Sub-rule (2) of Rule 66 has to be scrupulously followed, but the same is subject to the provisos. In other words, the provisos are exceptions to Clause (e) to sub-rule (2).
12. As already recorded in the earlier paragraphs, the Apex Court in Desh Bandhu Gupta v. N.L. Anand and Rajinder Singh (supra) laid down a principle that if the valuation of the judgment-debtor is not indicated in the sale proclamation, the same has to be treated as vitiated.
13. In the decision Desh Bandhu Gupta v. N.L. Anand and Rajinder Singh (supra), the Apex Court proceeded further, and while dealing with the effect of Order 21, Rule 66(2) and Rule 54(1-A) and other relevant provisions of the Code, noticed that Order 21, Rule 54(1-A) was brought in by 1976 Amendment Act which requires the Court to put the judgment-debtor on notice to attend the Court on a specified date for fixing the date of settling the terms of proclamation of sale. Form-24 of Appendix-E is relevant in this connection. It is further held that it is the statutory duty on the part of the Court to issue notice to the judgment-debtor before settlement of the terms of proclamation of sale. When such notice was issued and when there was no objection from the judgment-debtor regarding the valuation given by the decree-holder, certainly that would act against the judgment-debtor. It is further observed that sale proclamation should not be done in a casual way.
14. From the impugned order, it could be seen that sale proclamation was already made and the same was on record. The judgment-debtor earlier on a couple of occasions sought for adjournment of the sale on the ground of part-payment. But, on the third occasion, when the judgment-debtor again sought for the adjournment of sale by offering to deposit a sum of Rs. 10,000/-, the same was not acceptable to the decree-holder which forced the Court below to proceed with the sale and accordingly, the sale was conducted on the same day.
15. The above facts would only indicate that the judgment-debtor had the knowledge of sale by way of notice from the Court below regarding the proclamation of sale and the date of settlement of the terms was the initial date and on that date, the judgment-debtor should and could have filed his objections, if any, on the valuation assessed by the decree-holder. Even if no valuation was made by the decree-holder, the judgment-debtor is not precluded from quoting his price.
16. It is on record that the judgment-debtor did not file any objections on the date fixed by the Court below for settlement of the terms of sale indicating the value of the property under sale. On the other hand, on all the three occasions, the judgment-debtor came forward only to pay some amount and sought for adjournments of the sale, that means, at no point of time, particularly, at the initial stage i.e. at the time of settlement of terms of sale, the judgment-debtor did not make any assessment or indicate the value of the property. The earliest opportunity, as held by the apex Court in Desh Bandhu Gupta v. N.L. Anand and Rajinder Singh (supra), should be at the stage of issuing notice under Order 21, Rule 54(1-A) of the Code.
17. It is to be further seen that Rule 54(1-A) of the Code should be read along with provisos to Sub-rule (2) of Rule 66. As already pointed out, the provisos to Sub-rule (2) of Rule 66 are the exceptions to the general principles envisaged under Rule 66(2)(e).
18. Therefore, from the facts on record, in the present case, it is clear that though the judgment-debtor has a right to indicate his valuation of the property under sale, the same was not availed by him as contemplated under Rule 54(1-A) which is the earliest point of time. When the judgment-debtor failed to avail the opportunity at the initial stage in spite of having full knowledge about the sale proclamation and" the proceedings of settlement of terms of sale, no further opportunity need be given to him. The judgment-debtor also failed to avail the said opportunity on the earlier two occasions when he came forward to pay some amount and sought for adjournment. Even on those occasions, he did not come forward to file his objections or indicate his valuation of the property under sale. Further more, if the specific contention of the judgment-debtor is that he has no knowledge about the sale proceedings, the same should have been raised at the earliest point of time, i.e., at the stage of Rule 54(1-A) proceedings.
19. For the aforementioned reasons, the general, principle envisaged under Clause (e) of Sub-rule (2) to Rule 66 of the Code has no application to the present case since there is a flagrant violation of the procedure envisaged under the provisos to Sub-rule (2) to Rule 66. Viewed from any angle, I do not find any justification to interfere with the impugned order. Therefore, the Civil Revision Petition is liable to be dismissed.
20. At this stage, the learned Counsel for the petitioner, Sri K. Muralidhar Reddy, upon instructions from his client, submits that the petitioner is ready and willing to pay the entire decretal amount to the full and final satisfaction. It is further brought to the notice of this Court that the petitioner had already paid some amount during the pendency of the execution proceedings. It is also not in dispute that the petitioner has deposited a sum of Rs. 35,000/- by virtue of the interim order of this Court dated 16.12.2003.
21. Having regard to the facts and circumstances, particularly the fact that the petitioner is ready and willing to pay the balance amount to the full and final satisfaction of the decree, this Court feels it fit and just to grant a reasonable time to the petitioner to wriggle out of this execution proceedings by way of paying the entire amount towards full and final satisfaction of the decree. Accordingly, I feel it appropriate to grant reasonable time to the petitioner up to 30th June, 2004 to comply with the undertaking given by the Counsel for the petitioner, upon the instructions of his client.
22. Accordingly, the E.P. amount should be deposited, after giving credit to the amount, if any made, during the E.P. proceedings, into the Court, by the petitioner. In default of such payment of entire E.P. amount on or before 30th June, 2004, the impugned order of the Court below would automatically become effective and further proceedings would automatically follow.
23. In the result, the Civil Revision Petition is disposed of, subject to the directions indicated above. However, there shall be no order as to costs.