Case Note & Summary
The appeal arose from a partition suit where the appellant sought partition and separate possession of a 16/64 share in plaint schedule property. A preliminary decree for partition was confirmed, and before the final decree, the property at Item No.18, a Saw Mill, was brought to sale. Initially, it was sold between the parties as per court directions, and subsequently, a public auction was conducted. In the public auction, the second respondent purchased the property for Rs.1,03,600. The appellant filed an application under Section 47 of the Code of Civil Procedure, 1908 to set aside the sale. Several grounds were raised but not pressed, except the ground that the Commissioner had no power to fix the upset price in conducting the sale. The learned Single Judge had upset the sale, but the Division Bench of the Madras High Court in LPA No. 205/1995 rejected the new ground and confirmed the sale. The appellant then approached the Supreme Court by special leave. The core legal issue was whether the Commissioner or the executing Court could fix the upset price under Order XXI Rule 66 CPC. The appellant argued that the mandatory language of Order XXI Rule 66, sub-rule (2)(d) and (e), makes the fixation of the amount for recovery and specification of material particulars a judicial function of the Court, and therefore the Commissioner's action went to the root of the matter. The respondent contended that the executing Court had directed the Commissioner to fix the upset price at Rs.70,000, so the Commissioner acted under the Court's direction and not on his own. The Supreme Court examined Order XXI Rule 66 and the Madras and Pondicherry amendment, holding that the provision in unequivocal terms indicates that it is the function of the Court, while proclamation is drawn up, to fix the amount of recovery for which sale is ordered and specify necessary particulars. The value of the property given by the decree-holder and 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 had noted that the Commissioner, examined as RW-3, stated he fixed the sale and upset price at Rs.70,000 as ordered by the Court, and the sixth respondent was the highest bidder at Rs.95,200 and deposited the entire amount. The Supreme Court found that the executing Court appears to have given direction to the Commissioner not only to conduct the sale but also to fix the upset price at Rs.70,000. Therefore, there was no infraction of the mandatory language of Order XXI Rule 66 CPC because the Commissioner fixed the upset price not on his own but on the direction of the Court itself. The appeal was dismissed with no costs.
Headnote
A) Civil Procedure - Execution of Decrees - Sale Proclamation and Fixation of Upset Price - Code of Civil Procedure, 1908, Order XXI Rule 66 - The Supreme Court examined whether a Commissioner conducting a court-ordered sale could fix the upset price. The Court held that Order XXI Rule 66 makes it the function of the Court to settle the terms of proclamation and fix the amount for recovery and necessary particulars, including upset price. However, the evidence showed that the executing Court had directed the Commissioner to fix the upset price at Rs.70,000; therefore the Commissioner acted under the Court's direction and not on his own, and there was no infraction of the mandatory language. Held that the appeal is dismissed with no costs.
Issue of Consideration
Whether the Commissioner or the executing Court can fix the upset price in a court-ordered sale under Order XXI Rule 66 of the Code of Civil Procedure, 1908.
Final Decision
The Supreme Court dismissed the appeal, holding that reading of Order XXI Rule 66 shows the Court's function to fix the amount of recovery and specify necessary particulars. The evidence showed the executing Court directed the Commissioner to conduct the sale and fix upset price at Rs.70,000; the Commissioner fixed upset price not on his own but on the Court's direction, so there was no infraction of Order XXI Rule 66. No costs.
Law Points
- Order XXI Rule 66 CPC mandates the Court to settle proclamation terms and fix the amount for which sale is ordered
- upset price is a judicial function of the executing Court
- Commissioner cannot fix upset price suo motu
- no infraction if Commissioner acts under Court's direction
- Madras and Pondicherry amendment requires terms of proclamation to be settled in Court after notice.
