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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