Full Judgment Text
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CASE NO.:
Appeal (civil) 576 of 2005
PETITIONER:
Sai Enterprises
RESPONDENT:
Bhimreddy Laxmaiah & Anr
DATE OF JUDGMENT: 16/03/2007
BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment passed by a
learned Single Judge of the Andhra Pradesh High Court
dismissing the Civil Revision petition filed under Article 227 of
the Constitution of India, 1950 (in short ’the Constitution’)
read with Section 115 of the Code of Civil Procedure, 1908 (in
short the ’Code’).
Background facts in a nutshell are as follows:
The appellant filed a suit O.S. No.57/96 against
respondent no.2 for recovery of Rs.4,49,500/-. The
respondent no.1 also filed a suit O.S. No. 65/96 against
respondent no.2 for foreclosure of the mortgage in his favour
for a sum of Rs.1,00,000/-. Both the suits were pending on
the file of the Senior Civil Judge, Suryapet. During the
pendency of the suit appellant filed IA no. 413/96 for
attachment before judgment and same was ordered in terms
of order dated 7.10.96. OS No.65/96 filed by respondent no.1
was decreed against respondent no.2. Respondent no.1 filed
an execution petition (EP No.1/99) and sought for sale of
mortgaged property as respondent no.2 did not satisfy the
decree. Respondent no.1 indicated the value of the property
to be rupees three lakhs. The bailiff after obtaining
information from the Registrar and Municipal Office
mentioned value of the property at Rs.2,55,490/-. The
appellant’s suit OS 57/96 was decreed against respondent
no.2. The said respondent No. 2 - judgment debtor was set ex
parte as he did not attend the EP proceedings i.e. EP no.1/99.
Proclamation was published in newspaper "Eenadu". The
matter was adjourned from time to time. Appellant filed
execution petition EP no.19/01 seeking direction for sale of
schedule property for realization of the amount of
Rs.5,69,816/- due under the judgment and decree dated
16.2.2000 made in OS No.57/96.
Respondent no.2 filed an application EA No.90/01 in EP
No.1/99 under Order XXI Rules 69 read with Sections 47 and
151 of the Code seeking a direction to stop the auction to be
held on 12.11.2001 and sought for adjournment of the matter
for settlement of terms and conditions of sale. Fresh
publication and proclamation of sale was made in newspaper
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namely, Neti Manadesam. Learned Civil Judge dismissed the
application EA No.90/91 in EP No.1/99 filed by respondent
no.2. The said order was challenged before the High Court in
CRP no.6036/01. Again proclamation of sale was published
in ’Neti Mandadesham’ and the decree holder purchased the
property for Rs.3,12,000/- in OS No.57/96. Thereafter the
appellant filed an application EA No.42/02 under Order XXI
Rule 90 of the Code to aside the sale and to re-auction the
schedule property, as the respondent no.1 has not taken
proper steps for wide publicity of the auction. It was stated
that the value of the property was not less than rupees six
lakhs. Objection was filed by the respondents. The judgment-
debtor categorically stated in the counter that the value of the
property is more than rupees 8 lakhs. The sale was confirmed
on 24.1.2002. The High Court dismissed CRP filed by the
judgment debtor-respondent no.1. The appellant filed an
application EA No.107/03 in EA No.42/02 in EP No.1/99 to
receive the valuation report issued. Learned Civil Judge
dismissed the application. The High Court was moved. As
noted above the High Court, dismissed the Civil Revision
petition being of the view that allegations made in the petition
are general in nature, and the affidavit with the petition does
not disclose whether objection relates to non publication in
the newspaper or places.
In support of the appeal learned counsel for the
appellant submitted that the newspaper in which the
publication was made is not a wide circulating newspaper.
Further the valuation at which the decree holder purchased is
very low. Additionally, it is submitted that in terms of Order
XXI Rule 64 of the Code the Court was required to find out
whether a part of the property would have sufficed to meet the
decretal amount, which was not done in the present case.
Learned counsel for the respondent supported the order.
It is to be noted that the High Court has categorically
found that initially the auction was notified in newspaper
’Eanadu’ with wide circulation, and that was done on two
occasions. The grievance about the publication in a
newspaper with inadequate circulation would have been a
factor provided the earlier notice was published in some
newspaper not having wide circulation, but admittedly the
publication was made in newspaper ’Eanadu’ having a wide
circulation. Additionally, it was submitted that the stand
regarding non-compliance with the requirements of Order XXI
Rule 54 sub-rule (2) of the Code is of no consequence because
the objection has to be specific and not to be general in
nature. In the absence of specific allegations it would not be
possible for either parties or the executing court to deal with
the same. This conclusion of the High Court is in order.
However, the grievance of the appellant so far non-
compliance with the requirements of Order XXI Rule 64 of the
Code is on sound footing.
Order XXI Rule 64 reads as follows:
"64. Power to order property attached to be
sold and proceeds to be paid to person
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
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sufficient portion thereof, shall be paid to the
party entitled under the decree to receive the
same."
The provision contains some significant words. They are
"necessary to satisfy the decree". Use of the said expression
clearly indicates the legislative intent that no sale can be
allowed beyond the decretal amount mentioned in the sale
proclamation. (See Takkaseela Pedda Subba Reddi v Pujari
Padmavathamma (AIR 1977 SC 1789). In all execution
proceedings, Court has to first decide whether it is necessary
to bring the entire 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 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 is not just a discretion but an obligation
imposed on the Court. The sale held without examining this
aspect and not in conformity with this mandatory requirement
would be illegal and without jurisdiction. (See: Ambati
Narasayya v. M. Subba Rao and Anr. 1989 Suppl. (2) SCC
693). The duty cast upon the Court to sale only such portion
or portion thereof as is necessary to satisfy the decree is a
mandate of the legislature which cannot be ignored. Similar,
view has been expressed in S. Mariyappa (Dead) by LRs. And
Ors. v. Siddappa and Anr. (2005 (10) SCC 235). The position
was also highlighted in Balakrishnan v. Malaiyandi Konar
(2006 (3) SCC 49).
In the aforesaid background normally we would have
remit ted the matter for consideration of the aspects covered
by Order XXI Rule 64 of the Code. But considering the
peculiar facts of the case and the long passage of time, we
direct that the respondent no.1 shall pay a sum of rupees one
lakh to the appellant within a period of three months. In case
of non-payment of the aforesaid amount, the appellant shall
be free to pay a sum of Rs.3,12,000/- with 9% interest from
the date of auction, to the respondent no.1 and get the
property conveyed in his favour under the directions of the
Court.
Appeal is accordingly disposed of with no order as to
costs.