In W.P. No. 12520 of  2022-BOM HC- In terms of Order XXI Rule 66 CPC, proclamation of sale is required to state time & place of sale as well as specify details which are material for purchase of property: Bombay HC
Justice Sharmila U. Deshmukh [04-01-2023]

Read Order: MAHESH RAMBHAU PATIL AND OTHERS V. SHREERAM CITY UNION FINANCE LTD. GPA HOLDER RAKESH K. YEWALE AND OTHERS 

Mansimran Kaur

Aurangabad, January 7,2023: The Aurangabad Bench of the Bombay High Court has opined that the second provision to Rule 66 of CPC specifies that it is not necessary for the Court to enter into the proclamation of sale as its own estimated valuation of the property.

Justice Sharmila U.  Deshmukh  dismissed the instant petition by observing that the  material on record demonstrated that the proclamation was settled in accordance with the provision of Order XXI and in particular Order XXI Rule 66 of the Code of Civil Procedure.

The first petitioner had obtained the loan of Rs 40 lakh from the first respondent- Company in the year 2016 and as a security for the said loan two mortgage deeds were executed in respect of the first plot. 

The Petitioners could repay a sum of Rs 8,72,000 and as there was a default in the repayment of the balance amount of the loan, the first respondent initiated arbitration proceedings wherein an arbitration award for sum of Rs 15,93,000 was passed in favour of the company. The Respondent-decree-holder filed an application for execution before the Civil Judge, Senior Division, for execution of the award. An application  also came to be filed by the first respondent -decree-holder stating that the court had passed an order permitting the sale. 

The Executing Court issued a notice directing to the petitioners to attend the Court on the next date at 11:00 a.m. and take notice to the date fixed for setting terms fixed of the sale in accordance with the Order XXI Rule 54(1) of the Code of Civil Procedure, 1908 . 

By the said order, the Executing Court directed the issuance of notice to the judgment- debtor and decree holder under Order XXI Rule 66(2) of the Code. Subsequent thereto, an application was filed by the first respondent -decree holder submitting the  draft of the proclamation of the sale.  The application was resisted by the petitioner-judgment- debtor on various grounds.

By this petition, the petitioners impugned the order passed in the execution application. A perusal of prayer clause showed that the substantial prayer pertained to the quashing of the  said order, however, the prayer clause seeking interim relief sought stay of a few earlier orders .

After considering the submissions, the Court noted that the provisions pertaining to the execution of the decrees and orders are contained in Order XXI of the Code. The rules contemplate issuance of notice to the judgment debtor to attend the Court on specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale and the proclamation of sale to be drawn up after notice to the decree-holder and judgment-debtor, the purpose being to ensure that the judgment debtor has notice of the terms of settlement of the proclamation of sale and to enable the judgment-debtor to submit the estimate of the value of the property, which will be considered while settling the terms of proclamation of sale.

The Bench further noted, “A perusal of the provision of Order XXI Rule 66 of the Code, shows that the proclamation of sale is required to state the time and place of the sale and specify as fairly and accurately as possible the details which the Court considers material for the purchase of property and nature of value of the property”. 

It is left to the discretion of the Court to specify the necessary details, the only caveat being that in the event of an estimate given by the parties, the proclamation to include the estimate. What is to be noted is that the second provision to Rule 66 specifies that it is not necessary for the Court to enter into the proclamation of sale as its own estimated valuation of the property, the Bench added. 

The Court thus observed, that the counsel for the petitioners were not able to demonstrate any substantial prejudice or injury which was being caused to the Petitioners, in the  event  if the bid of Rs 90 lakh was  accepted. 

As per the Bench, the admitted position was such  that the Petitioners defaulted on the payment of loan amount and the highest bid of Rs.90 lakhs was received. The matter was fixed for final sale on January 5, 2023. Counsels for the petitioners were not able to demonstrate violation of any provision of the Code, set out for execution of the decree. On the contrary every effort was made by the Petitioners to stall the sale. 

The material on record demonstrated that property was attached and the proclamation was settled in accordance with the provision of Order XXI and in particular Order XXI Rule 66 of the Code, the Court observed while dismissing the appeal.