Full Judgment Text
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PETITIONER:
AMBATI NARASAYYA
Vs.
RESPONDENT:
M. SUBBA RAO & ANR.
DATE OF JUDGMENT06/10/1989
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
AHMADI, A.M. (J)
CITATION:
1990 AIR 119 1989 SCR Supl. (1) 451
1989 SCC Supl. (2) 693 JT 1989 (4) 50
1989 SCALE (2)806
ACT:
Code of Civil Procedure, 1908: Order XXI Rule 64--Execu-
tion proceedings--Ordering entire property to be sold---Only
such portion of property to be put to sale consideration of
which is sufficient to meet the execution claim.
HEADNOTE:
Rule 64, Order XXI CPC empowers the Court executing a
decree to bring to sale any property attached by it or such
portion thereof as may seem necessary to satisfy the decree.
The appellant’s land measuring 10 acres was brought to court
sale in execution of a decree. The respondent purchased the
land for Rs. 17,000. The sale was subject to a prior mort-
gage for Rs.2,000.
The appellant’s application under Order XXI, Rule 90 for
setting aside the sale was rejected by the executing court
on the ground that the sale was not vitiated by fraud or
irregularity. The appeal against the order was dismissed by
the Subordinate Judge. Before the appellate court the con-
tention taken on behalf of the appellant was that the exe-
cuting court ought to have sold only such portion of the
land as would satisfy the decretal dues and the sale of the
entire 10 acres was illegal and without authority. The court
rejected that contention on the ground that it was a single
piece of land and could not have been divided into parcels.
The High Court also dismissed the revision.
Allowing the appeal by special leave,
HELD: In all execution proceedings, the court has to
first decide whether it is necessary to bring the entire
attached property to sale or such portion thereof as may
seem necessary to satisfy the decree. If the property is
large and the decree to be satisfied is small, the court
must bring only such portion of the property to sale the
proceeds of which would be sufficient to satisfy the claim
of the decree holder. It is a mandate of the legislature
which cannot be ignored. Any sale held without examining
this aspect and not in conformity with this requirement
would thus be illegal and without jurisdiction. [453H; 454A,
H, B]
452
In the instant case, the amount claimed in the execution
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petition was about Rs.2,400. To realize that amount the land
measuring 10 acres was sold for Rs.17,000. The land is not
indivisible. Nor division is impracticable or undesirable.
Out of 10 acres, the court could have conveniently demarcat-
ed a portion and sold it. [454E-F]
The sale must, therefore, be set aside being in contra-
vention of the provision of Rule 64, Order XXI CPC. [454H]
Takkaseela Pedda Subba Reddy v. Pujari Padmavathamma &
Ors., [1977] 3 SCC 337 at 340, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4195 of
1989.
From the Judgment and Order dated 16.2.1987 of the
Andhra Pradesh High Court in C.R.P. No. 3750 of 1984.
B. Kanta Rao for the Appellant.
M.S. Ganesh for the Respondents.
The Judgment of the Court was delivered by
K. JAGANNATHA SHETTY, J. We grant special leave and
proceed to dispose of the appeal.
In O.S. No. 821/1973, there was ex parte decree against
the appellant for payment of Rs.2,000 and cost. In execution
of the decree, the appellant’s land S. No.116 at Bayanguda
village measuring 10 acres was brought to Court sale. His
small farm house was also located in the land. In the auc-
tion held the respondent purchased the land for Rs. 17,000.
The sale was subject to the prior mortgage for Rs.2,000 in
favour of the Land-mortgage Bank Jangareddigudem. On 31 May
1976 the sale was confirmed. On 26 July 1976, the appellant
filed application under Order XXI Rule 90 for setting aside
the sale. He impeached the auction sale broadly on three
grounds namely: (i) that he was the owner of only one acre
of land and the remaining 9 acres in the said survey number
belonged to his father-Siddaiah, (ii) that the land was
worth about Rs.70,000 but it was sold for a very low price
of Rs. 17,000 by fraudulent procedure followed by the au-
thorities, and (iii) that he was not served with notice
before attachment or sale.
453
In support of the above allegations, the appellant
entered the witness box as PW 2. He has also examined four
other witnesses besides producing documentary evidence
marked as Ex. A-1 to A-13. The auction purchaser in turn has
examined three witnesses.
On appraisal of the evidence, the executing court-the
Principal District Munsif, Kovvur, rejected the application
of the appellant. He held that the sale was not vitiated by
fraud or irregularity. The appeal against that order was
dismissed by learned Subordinate Judge at Kovvur. Before the
appellate court, one other contention was argued on behalf
of the appellant. It was contended that the executing court
ought to have sold only such portion of the land as would
satisfy the decretal dues and the sale of the entire 10
acres was illegal and without authority. The appellate court
rejected that contention for the reason that it is a single
piece of land and could not have been divided into parcels.
The High Court of Andhra Pradesh also dismissed the appel-
lant’s revision, but expressed no opinion as to whether a
portion of the land could have been sold to satisfy the
decree.
Hence this appeal.
The principal question that has been highlighted before
us relates to the legality of the sale of 10 acres of land
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without considering whether a portion of the land could have
been sold to satisfy the decree. It is said that the total
sum claimed in the execution was Rs.2,395.50. The relevant
provision which has a bearing on the question is Rule 64
Order XXI of the Code of Civil Procedure and it reads as
follows:
"Order XXI Rule 64: Power to order property
attached to be sold and proceeds to be paid to
persons entitled--Any Court executing a decree
may order that any property attached by it and
liable to sale, or such portion thereof as may
seem necessary to satisfy the decree, shall be
sold, and that the proceeds of such sale, or a
sufficient portion thereof, shall be paid to
the party entitled under the decree to receive
the same."
It is of importance to note from this provision that in
all execution proceedings, the Court has to first decide
whether it is necessary to bring the entire attached proper-
ty to sale or such portion thereof as may seem necessary to
satisfy the decree. If the property is large and the decree
to be satisfied is small, the Court must bring only such
454
portion of the property, the proceeds of which would be
sufficient to satisfy the claim of the decree holder. It is
immaterial whether the property is one or several. Even if
the property is one, if a separate portion could be sold
without violating any provision of law only such portion of
the property should be sold. This, in our opinion, is not
just a discretion, but an obligation imposed on the Court.
Care must be taken to put only such portion of the property
to sale the consideration of which is sufficient to meet the
claim in the execution petition. The sale held without
examining this aspect and not in conformity with this re-
quirement would be illegal and without jurisdiction.
In Takkaseela Pedda Subba Reddy v. Pujari Padmavathamma
and Ors., [1977] 3 SCC 337 at 340; this Court after examin-
ing the scope of Rule 64 of Order XXI CPC has taken a simi-
lar view:
"Under this provision the executing Court
derives jurisdiction to sell properties at-
tached only to the point at which the decree
is fully satisfied. The words ’necessary to
satisfy the decree’ clearly indicate that no
sale can be allowed beyond the decretal amount
mentioned in the sale proclamation. In other
words, where the sale fetches a price equal to
or higher than the amount mentioned in the
sale proclamation and is sufficient to satisfy
the decree, no further sale should be held and
the court should stop at that stage."
We may again hark back to the case of the appellant. The
amount claimed in the execution petition was about Rs.2,400.
To realize that amount the land measuring 10 acres was sold
for Rs. 17,000. The appellate court has stated that the land
being one, could not have been divided. Shri Ganesh, learned
counsel for the respondent sought to justify that view. But
we find it difficult to appreciate that reason. It seems to
be against common sense. The land is not indivisible. Nor
division is impracticable or undesirable. Out of 10 acres,
the Court could have conveniently demarcated a portion and
sold it. Unfortunately, no such attempt was made and it was
not even thought of. The Court has blind fold sold the
entire property. This is a usual feature which we have
noticed in most of the execution cases. We must deprecate
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this tendency. There is a duty cast upon .the Court to sell
only such property or a portion thereof as necessary to
satisfy the decree. It is a mandate of the legislature which
cannot be ignored. We cannot, therefore, sustain the im-
pugned sale. It must be set aside being in contravention of
the provisions of Rule 64, Order XXI CPC.
455
In the result, we allow the appeal with costs. In rever-
sal of the orders of the courts below, we set aside the
impugned sale. We direct the Executing Court first to put
the appellant in possession of the land in question and then
refund the sale amount to the auction purchaser if it is in
deposit. The Court, thereafter may proceed to execute the
decree according to law and in the light of the observations
made. This order shah be complied with within two months
from the date of receipts of this order.
P.S.S. Appeal allowed.
456