P.S. Sivam and Company vs V. Ravi Kumar

S.M. Abdul Wahab, J.—This civil revision petition is against the order dated 9.11.1989 in E.P. No. 910 of 1986, on the file of the X

Assistant City Civil Judge, Madras.

The decree-holder is the petitioner. He filed the above execution petition for realisation of Rs. 11,313.25 in the first instance. Subsequently he

filed a memo in September, 1989. In the said memo he added a sum of Rs. 500 said to be the Commissioner''s fee paid by him. The execution

court has disallowed this amount alone. Hence the civil revision petition has been filed.

Even though the respondent in the civil revision petition has been served, he has not chosen to appear in person or through counsel. Therefore

this civil revision petition has been taken up for hearing in his absence.

The learned Counsel for the petitioner Mr. N. Krishnamitra contended that the Commissioner''s fee of Rs. 500 was paid for the Commissioner

appointed at his clients request for the purpose of sale of the mortgaged property, and therefore the said fees must be treated as an expense

incurred by him, and therefore should be included as per Order 34, Rule 10 of the Civil Procedure Code. Order 34, Rule 10 of the CPC is as

follows:

In finally adjusting the amount to be paid to a mortgagee in case of a foreclosure, sale or redemption the court shall, unless in the case of costs of

the suit the conduct of the mortgagee has been such as to disentitle him thereto, add to the mortgage money such costs of the suit and other costs,

charges and expenses as have been properly incurred by him since the date of the preliminary decree for foreclosure, sale or redemption up to the

time of actual payment.

The section enables the decree-holder to add any cost, charge or expenses as have been properly incurred by the decree-holder. As stated by the

petitioner himself, the said amount was paid to the Commissioner for sale. The Commissioner for sale was appointed at his instance. In the

Execution Petition, in column No. 12, the relief claimed is as follows:

By issue of warrant for sale of punja lands in Nanthambakkam village No. 88, Sriperumbudur Taluk, Chengalpattu District bearing S. Nos. 641/1,

641/2, 641/5 and 641/6 of total extent of 6.16 acre by appointing a Commissioner directing sale by public auction and under Order 21, Rule 64

read with Rule 65.

Even though a Commissioner was appointed, it is seen from the records that the appointment of the Commissioner was cancelled. After the

cancellation of the commissioner''s appointment, what happened to the amount of Rs. 500 is not stated. Whether the amount was actually paid to

the Commissioner, and if so, whether the said amount was returned back after the order was cancelled, are also not known.

That apart, as per Rule 65 of Order 21 every sale in execution of a decree should be conducted by an officer of court or by such other person

as the court may appoint in this behalf. Rule 65 of Order 21 prescribes the procedure to be adopted for sale including the proclamation of sale.

Rule 67 of Order 21 prescribes the mode of making proclamation. Rules 68 and 69 of Order 21 of the CPC prescribe the time and adjournment

or stoppage of sale. Elaborate procedure is prescribed and the court has to adopt the procedure as is seen from Rule 66 of Order 21 of the Civil

Procedure Code. Therefore a conjoint reading of Rules 64 to 69 of Order 21 of the CPC gives the impression that the sale by court below is a

better and safer procedure to be adopted when a property is to be sold in execution of a decree. It is true that as per Rule 65 of Order 21 of the

CPC apart from the court, some other person as the court may appoint, shall also make the sale. But it is only an alternative procedure. It has to

be resorted to only in certain special contingencies and not as a matter of course for the mere asking of the decree holder. We have seen, as stated

above, that the appointment of a Commissioner for sale became unnecessary and the said order was cancelled also. Assuming for the sake of

argument that the Commissioner''s fee of Rs. 500 was paid already to the Commissioner, and if the Commissioner has taken some steps, it would

be very difficult to direct him to return the amount. In case the sale is completed by the Commissioner, there is a possibility of the Commissioner

demanding more remuneration. All these will go to show that the appointment of a Commissioner for sale of property in execution has to be

adopted only in certain contingencies that too when the sale is not possible by court or is not advantageous for both the parties.

For the foregoing reasons, I hold that the execution court has rightly rejected the claim of the decree-holder for adding Rs. 500 towards cost

and expenses incurred by him. Therefore there is no reason to interfere with the said order. Hence the civil revision petition fails and is dismissed

Without costs.