(Petitions (disposed of on 8-7-1957) praying that in the circumstances stated in the affidavit filed therewith the High Court will be pleased to direct stay of further proceedings in E.P. No. 293 of 1956 in O.S. No. 110 of 1951 on the file of the Court of the Subordinate Judge of Madurai pending C.R.P. No. 1702 of 1956 presented to the High Court to revise the order of the Court of the Subordinate Judge (Principal) of Madurai dated 8-12-1956 and made in E.A. No. 1006 of 1956 in E.P. No. 293 of 1956 in O.S. No. 110 of 1951, etc.)

(1) These are three matters in which the first two applications wherein interim stay had been granted are coming up for final order and the third C.R.P., is coming up for admission along with the C.M.P., for grant of stay.

(2) The point taken in all these three matters is the same, viz., whether the lower Courts notifying in the sale proclamations the decree holders valuation and the judgment-debtors valuation but without endeavouring to fix its own valuation, even though naturally these contending valuations differ, constitutes an error of jurisdiction inviting interference in Revision.

(3) There is a conflict of decisions as pointed out in the A.I.R. Commentaries on the C.P.C. 5th Edition, Vol. II, P. 2461, as to whether under this rule a Court is under a duty to state its own estimate of the value of the property to be sold in the sale proclamation. This High Court (A.I.R. 1949 M. 398; A.I.R. 1928 M. 503; A.I.R. 1927 M 1009; A.I.R. 1927 M. 943); and the High Court of Allahabad in A.I.R. 1932 All. 664 [LQ/AllHC/1932/68] have held that the Court is under no such obligation. On the other hand it has been held by the High Court of Patna (A.I.R. 1917 Pat. 381-2 Pat. L.J. 130 F.B); A.I.R. 1918 Pat. 372; A.I.R. 1923 Pat. 445) [LQ/PatHC/1923/101] : (See also A.I.R. 1940 Patna 707valuation to be determined on the existing materials on record as also by the High Courts of Calcutta (A.I.R. 1932 Cal-141; A.I.R. 1933 Cal. 511; A.I.R. 1934 Cal. 205 [LQ/CalHC/1933/143] ; 8 C.W.N. 257 etc., (But see 31 Cal. 922 [LQ/CalHC/1904/12] Court not required to make an investigation) and Rangoon and the Chief Court of lower Burma that it is the duty of the Court to enter in the sale proclamation its own estimate of the value of the property. The Bombay High Court has held in a decision (A.I.R. 1939 Bom. 182) [LQ/BomHC/1938/146] that it is not necessary in every case to value the property to be sold and to state the value in the sale proclamation; but the Court, may, if it thinks fit, do so. But in A.I.R. 1935 B. 331 it was held by the same High Court that the Court is bound to hold an inquiry as to the value of the property and state the value in the sale proclamation. Opinion in the Nagpur Judicial Commissioners Court is divided (A.I.R. 1930 Nag. 191). Though, as seen above, the Calcutta High Court holds that it is the duty of the Court to enter in the sale proclamation its own valuation of the property to be sold, it has also been held by that Court that in exceptional cases, the Court will be justified in not attempting to give a valuation of its own and in confining itself to stating the values given by the parties (A.I.R. 1932 Cal. 576 [LQ/CalHC/1932/11] ; A.I.R. 1931 Cal. 520) [LQ/CalHC/1930/181] . In any view, the omission of the Court to give an estimate of the value is a mere irregularity and does not by itself vitiate the sale.

(4) Under the rule as amended by the High Courts of Calcutta, Lahore, Madras, Nagpur and Patna, and the Judicial Commissioners Court of N.W.F. Province, the Court is not bound to give its own estimate of the value of the property, but is only required to state the value given by the parties (see Local Amendments). In view of this, the decisions of the High Courts of Calcutta and Patna and the Judicial Commissioners Court of Nagpur passed before the above amendments, holding that the Court was under a duty to state its own estimate of the value of the property should be treated as no longer good law.

(5) I shall now briefly review the decisions of this Court on this point.

[In Thiruvengadasami Ayyangar v. Govindaswami Udayar and others A.I.R. 1927 Mad. 943 [LQ/MadHC/1927/185] .] it was held:

A Court undertaking to give valuation which would be a real guide to a bidder even if it did not inspect the property itself would at any rate hare to accumulate copious data and hold an elaborate inquiry. The law requires that the Court as fairly and accurately as possible shall state anything which the Court considered material for a purchaser to know. If it considers a fair and accurate report of the value given by three persons material for the purchaser and nothing more in that particular respect, the Court will not have erred.

In Veeraswami Pillai v. Kalyana sundaram Mudaliar A.I.R. 1927 Mad. 1009 [LQ/MadHC/1927/214] . it was held:

When the decree-holder and the judgment debtor differ hopelessly as to the probable value of the property, a statement as to the value by the Court is at best a guess and the Court may in the circumstances of a particular case, consider it better to abstain from such guess.

In Thiruvengadaswami Iyengar v. Govindasami Udayar A.I.R. 1928 Mad 503 [LQ/MadHC/1927/471] =27 L.W. 577. it was held that the Court itself is under no obligation whatever to fix in the proclamation of sale its own valuation of the property to be sold.

In Srinivasan v. Andhra Bank Ltd. (1948)-II M.L.J. 569=61 L.W. 85

2. Govinda Menon, J. held:

Clause (e) of O. 21, R. 66(2). Civil Procedure Code, only requires that the proclamation should contain the value of the property as stated by the decree-holder and judgment debtor. It cannot be said that in spite of this provision a duty is cast on the Court by Cl, (t) of O. 21, R. 66(2) to fix its own valuation and to insert it in the sale proclamation. By enacting the new Cl. (e) it should be deemed that the residuary Cl. (f) is intended to cover matters other than the market value.

In 1951 M.W.N. (Sh. N.) 22 (C.R.P. No. 784 of 1950), Satyana rayana Rao, J. held that as laid down by O. 21, R. 66 Civil Procedure Code, as amended by the High Court, the sale proclamation should state besides other things the value of the property as stated by the decree-holder and as stated by the judgment debtor and that there is no question of reducing or enhancing the upset price at that stage.

In Arunachalathammal v. Kanagasabapathi Pillai A.I.R. 1955 Mad. 720 [LQ/MadHC/1954/312] =(1955)- I M.L.J. 285.Mack. J. struck a different note and held that where there is wide divergence between the decree-holders valuation and the judgment-debtors valuation, it is desirable for the Court to have the property valued by an amin and to have such valuation inserted in the proclamation.

In C.R.P. No. 1382 of 1956 the learned Chief Justice condemned the practice of notifying the valuations suggested by the judgment debtor and the decree-holder as upset prices as being absolutely unworkable. Then My Lord the Chief Justice proceeded to hold:

Though it is true that the Judge in execution need not embark on an enquiry with or without the help of a commissioner as to the value of the property proclaimed for sale, there is still a duty on the part of the Court to fix the upset price, having regard to such material as is placed before it by the parties without, of course, a regular enquiry. The Court cannot refuse to do this duty and allow a property to be brought to sale with two upset prices differing, as they in this case, to a considerable extent.

In C.R.P. No. 748 of 1956. Ramaswami Gounder, J. had to deal with the same point. In that case also the sale proclamation notified as upset prices the valuations of the decree-holder and the judgment-debtor which differed to a considerable extent. Ramaswami Gounder, J. after setting out the observations of My Lord the Chief Justice proceeded to observe as follows:

The present case falls directly within that decision and so it is dear that the Subordinate Judge was in error in fixing both the amounts as the upset price. What he should have done, as required by O. 21, R. 66(2)(e), is to have mentioned both the figures in the sale proclamation without fixing any upset price. That this is the proper procedure is also indicated by Satyanarayana Rao, J. in his order in C.R.P. No. 784 of 1950. In this connection, it may be observed that there is nothing in O. 21, R. 66 (2)(e) enjoining on an executing Court to make any enquiry as regards the valuation of the properties to be sold and give such valuation in the proclamation of sale. If any authority for that proposition were needed, reference may be made to the decision of Govinda Menon, J. in Srinivasan v. Andhra Bank Ltd. (1948)-II M.L.J. 569=61 L.W. 852.Another decision of Mack, J. in Arunachalathatntnal v. Kanakasabapathi Pillai A.I.R. 1955 Mad. 720 [LQ/MadHC/1954/312] =(1955)- I M.L.J. 285. was brought to my notice in which it is stated that the Judge has expressed a contrary view. Even that learned Judge only stated that where there is a wide divergence between the decree-holders valuation and the judgment-debtors valuation, it is desirable for the Court to have the property valued by the amin of the Court and to have such valuation inserted in the proclamation. But that certainly is not an obligatory duty cast upon the Court by the language of O. 21, R. 66(2)(e). However, in the present case, the learned Judge was clearly in error in fixing both the amounts as the upset price.

6. To sum up, after the amendment of O. 21, R. 66, C.P.C., it is now settled law that the Court is under no obligation to notify an upset price of its own. In fact in many cases it would not be even desirable for the Court to do so. The obligation of the Court is to state the valuations given by the decree-holder and the judgment-debtor. But they must not be notified as upset prices . The Court when ordering the sale with two valuations noted which are discrepant must adopt one of two courses. If it is desirable in the circumstances of the case for the Court to fix in a rough and ready way the upset price of its own it can do so, because the amended provision does not prohibit the Court from fixing its own upset price(A.I.R. 1926 Cal. 610 [LQ/CalHC/1925/398] ; A.I.R. 1928 Nag. 281). In fact Cl. (f) of R. 66 enjoins that the sale proclamation shall include 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. Cl. (2) of that rule states that the sale proclamation should specify as fairly and accurately as possible the property to be sold etc. But where the Court does not desire to fix even in a rough and ready way its own valuation, it will be perfectly within its rights in refraining from doing so and this cannot be canvassed either by way of appeal (A.I.R. 1928 Mad. 1169 [LQ/MadHC/1928/123] : 1928 M.W.N. 569) or revision. But it will instruct the selling officer either in general or in each case to begin the sale with the higher of the two valuations as upset price and if no bidders are forthcoming to go on lowering the upset prices and when the lower of the two valuations is reached to start again with the lower valuation, as otherwise our not incorruptible Nazirs deputed as celling officers will have to evolve an upset price of their own and which is most undesirable. The principles if followed carefully will meet every facet of the controversy which arises under O. 21, R. 66, C.P.C., and will be in conformity not only with the settled law of this Court but also of the other High Courts. Chandmal v. Vishnu Sarma A.I.R. 1953 Ajmer 5

3. and Abdul Sattar v. Amin A.I.R. 1952 San. 24., and safeguard the interests of both the judgment-debtor and the degree-holder and obviate unnecessary revisions.

7. Beyond drawing the attention of the concerned lower Courts to these observations, there is no ground to grant stay in C.R.P. Nos. 10690 of 1956 and 2942 of 1957 and they are dismissed and the interim stay already granted will stand dissolved. C.R.P. No. 725 of 1957 and the connected C.R.P. No. 4145 of 1957 will stand dismissed.