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Report No. 27

Order XXI, rule 72

A recommendation has been made in the Fourteenth Report1 to the effect, that a decree-holder should be allowed to purchase property unless the court has prohibited him from doing so2. The object of the recommendation was to avoid the delay that is frequently caused when the warrant of sale is returned unexecuted in the absence of bidders. An amendment carrying out this recommendation was proposed in the draft Report which had been circulated. Comments received thereon, however, emphasise the need for the court being aware of any proposal by the decree-holder to bid. There is considerable force in this approach, and a decision has been taken not to disturb the existing rule. The recommendation has not, therefore, been carried out.

1. 14th Report, Vol. I.

2. See also Civil Justice Committee (1925), Report, p. 410, para. 24.

Order XXI, rule 72A (Bombay)

Order XXI, rule 72A has been added by the High Court of Bombay to provide that if leave to bid is granted to a mortgagee, then, as regards him, a reserve price shall be fixed, which shall not be less than the amount due as principal, etc.

The history of this rule is this:

The Subordinate Judge of Haveli wrote a letter to the High Court in 1913, stating that this was the practice followed in the mufassil, and as the rule could not now be made under section 104, Transfer of Property Act, it should be made under Order XXXIV. The Rule Committee recommended that the old rule 20 of the Supplementary Civil Circular No. 11 should be restored1. In the absence of such a rule, the mortgagee can (under a general permission to bid) recover in execution the balance from the mortgagor or from his estate, if the amount for which the property is sold is less than the principal, etc., due to him2.

The question whether this amendment should be adopted has been considered. It is felt that a rigid provision of such a nature is not necessary. It would to a certain extent, detract from the remedy of the mortgagee under Order XXXIV, rule 6 also.

1. See discussion in Vrajlal v. Venkatastvami, ILR 52 Born 459 : AIR 1928 Born 123 (125) (Marten C.J. and Blackwell J.).

2. Vrajlal v. Venkatastvami, ILR 52 Born 459: AIR 1928 Born 123 (128).

Order XXI, rule 75

Local Amendments1, which have been made in implementation of the recommendation of the Civil Justice Committee2, empower the court to sell growing crops (after attachment) where they can be sold to greater advantage in an unripe state. It is, however, considered unnecessary to adopt these local Amendments, as they are of a minor character.

1. See amendments made by the High Courts of Calcutta, Madras, Nagpur and Patna.

2. Civil Justice Committee (1924-25), Report, p. 410, para. 25.

Code of Civil Procedure, 1908 Back

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