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CASE NO.: Appeal (civil)  2062 of 2000

PETITIONER: Balakrishnan

RESPONDENT: Malaiyandi Konar

DATE OF JUDGMENT: 17/02/2006

BENCH: ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Challenge in this appeal is to the judgment rendered by a  learned Single Judge of the Madras High Court holding that  the auction sale held in an execution proceeding and  confirmation thereof was illegal.  The matter was remitted to  the Executing Court  with a direction to consider the objection  in terms of Section 47 of the Code of Civil Procedure, 1908 (in  short the ’Code’) and to consider whether there was any need  for sale of the property in view of the deposit made by the  judgment debtor-respondent herein. The appellant who is the  decree holder purchased the property in the Court auction  sale. The proceedings relate to O.S.No.385/1977 on the file of  District Munsif, Kulithalai.  

The background facts need to be noted in brief.

         The suit was filed by the appellant on the basis of a  promissory note executed by the respondent in favour of the  appellant. The suit was decreed. In the proceeding for  execution of the decree in his favour (E.P.No.725/1981 on the  file of District Munsif, Kulithalai later renumbered as  E.P.45/1983 on the file of District Munsif, Manapparai)  the  appellant purchased the judgment debtor’s property on  8.7.1981 in Court auction after obtaining permission of the  Court for a sum of Rs.7,510/-. The sale was confirmed on  22.8.1983.  

Respondent filed EA 17/83 to set aside the sale on the  ground that he is entitled to the benefits under Tamil Nadu  Debt Relief Act, 1980 (in short the ’Debt Relief Act’). On  30.4.1983 application filed by the respondent was dismissed  on the ground that the respondent has not made out a case  for getting benefit under the Debt Relief Act. It was also held  that apart from the property covered by the auction sale, he  had got income from other properties.  Respondent filed Civil  Revision Petition No.3963 1983 before the Madras High Court  against the order of dismissal of EA 17/83. By order dated  10.9.1987 the High Court dismissed the Civil Revision Petition  upholding the findings of the Executing Court.  

       EP 80/93 was filed by the appellant on 13.8.1993 under  Order XXI Rule 95 of the Code for delivery of possession.

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Respondent filed counter affidavit inter alia taking the stand  that the Execution Petition was liable to be dismissed, as it  was filed beyond the limitation period of one year prescribed  under Article 134 of the Limitation Act, 1963 (in short the  ’Limitation Act’). The trial Court overruled the objections and  ordered delivery. Respondent thereafter filed Civil Revision  Petition No.2328/1994 before the High Court which was  allowed on 13.7.1998 by the impugned judgment.  

       During the hearing of the case, the High Court in order to  shorten litigation gave option to the judgment debtor to  deposit decretal amount with interest. In fact the respondent  deposited Rs.35,000/-.  Though at the time of hearing, learned  counsel appearing for the present appellant accepted that the  offer of judgment debtor (respondent herein) was a reasonable  one, he informed the Court that his client was not agreeable to  receive any amount and wanted the property.  The High Court  on examining the scope and ambit of Order XXI Rule 64 of the  Code held that the Executing Court while directing the sale  had not kept in view the correct parameters of the  requirements enjoined by the said provision, in particular to  decide first whether it is necessary to bring the entire attached  property to sale. Accordingly, the following directions were  given:

"In view of the abovesaid principle, I am of the  view that the Executing Court without  application of mind has directed the sale of the  property of nearly 5 acres for a paltry sum of  Rs.4,000/- and odd. Now the petitioner has  shown his bona fide by depositing the amount  of Rs.35,000/- and I am of the view that the  parties can be given an opportunity to  establish the same. It is open to the petitioner  to convince the lower Court as to which  portion of the property is sufficient to satisfy  the decree amount and the lower Court is  directed to consider the matter afresh, in the  light of the decisions of the Supreme Court as  well as the judgment of this Court referred  above, dispose of the claim of the parties in  accordance with law. Since the Executing  Court has not acted in accordance with the  above said principles of the Supreme Court, I  am of the view that the sale itself is liable to be  set aside even though no application has been  filed by the petitioner. However, the objection  filed by the petitioner is directed to be treated  as a petition under Section 47 CPC. Hence, the  matter is remitted back to the Executing Court  with direction to dispose of the objection  petition afresh. The Executing Court can also  consider the need for the sale of property in  view of the deposit made by the petitioner."

       Learned counsel for the appellant in support of the  appeal submitted that the High Court has lost sight of the fact  that the sale was confirmed on 22.8.1983. The earlier petition  filed in the execution proceedings was rejected and the High  Court also did not interfere.  That matter had attained finality.  The subsequent execution proceeding for delivery was filed.   The objection filed by respondent related to the applicability of  Article 134 of the Limitation Act and the High Court could not  have examined the matter in the background of Order XXI  Rule 64 of the Code. It is further submitted that even

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conceding for the sake of arguments that Article 134 of the  Limitation Act had application, the delay in filing the  application is clearly attributable to the respondent himself.  He had filed the objection and after its dismissal by the trial  Court had moved the High Court.    

       In response, learned counsel for the respondent  submitted that Article 134 of the Limitation Act clearly applies  to the facts of the case. Though the High Court did not advert  to that provision yet for doing substantial justice the Court  had indicated the parameters of Order XXI Rule 64 of the  Code. Property measuring about 5 acres was sold for a paltry  sum of Rs. four thousand. The judgment debtor had deposited  Rs.35,000/- which was sufficient to satisfy the decretal  amount and the interest that would have earned had the  payment been made at the initial stage.                   Order XXI Rule 64 reads as follows: "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  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).  

       In S.S. Dayananda v. K.S. Nagesh Rao and Ors. (1997 (4)  SCC 451) it was held that the procedural compliance of Order  XXI Rule 64 of the Code is a mandatory requirement. This was  also the view expressed in Desh Bandhu Gupta  v. N.L. Anand  and Rajinder Singh  (1994 (1) SCC 131).

       Therefore, on the background facts noted by the High  Court the auction sale did not meet the requirements of law.  But at the same time it appears that the question regarding

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the legality of the sale had attained finality because of the  confirmation of sale on 22.8.1983.  Though it is contended by  learned counsel for the respondent that the order dated  10.9.1987 passed by the High Court rejecting CRP 3963/1983  filed by the judgment debtor seeking relief, was relatable to the  Debt Relief Act, that did not have the effect of reviving the  question relating to violation of Order XXI Rule 64 of the Code.

       The residual question is the effect of Article 134 of the  Limitation Act, as appearing in the Schedule to the Limitation  Act relatable to, Sections 2(j) and 3 providing for periods of  limitation. Article 134 reads as follows:          Description of  application Period of limitation Time from which  period begins to  run

134.  For delivery of  possession by a  purchaser of  immovable property  at a sale in  execution of a  decree.

One year

When the sale  becomes absolute.

       The limitation for the purpose of Article 134 starts from  the date of confirmation of sale. (See Ganpat Singh (dead) by  Lrs. v. Kailash Shankar and Ors. 1987 (3) SCC 146). In Pattam  Khader Khan v. Pattem Sardar Khan and Anr. (1996 (5) SCC  48) this court held that it is not from the date when sale  certificate is issued that the limitation starts running. The sale  becomes absolute on confirmation under Order XXI Rule 92 of  the Code effectively passing title. It cannot be said to attain  finality only when sale certificate is issued under Order XXI  Rule 94.  There can be variety of factors conceivable for which  delay can be caused in issuing a sale certificate. The period of  one year limitation now prescribed under Article 134 of the  Limitation Act in substitution of a three year period prescribed  under Article 180 of the Indian Limitation Act, 1908 is   reflective of the legislative policy of finalizing proceedings in  execution as quickly as possible by providing a quick forum to  the auction purchaser to ask for the delivery of possession of  the property purchased within that period from the date of the  sale becoming absolute rather than from the date of issuance  of the sale certificate.  On his failure to avail such a quick  remedy the law relegates him to the remedy of a regular suit  for possession based on title, subject again to limitation.   

       Though it was submitted by learned counsel for the  appellant that the respondent was responsible for the delay  caused as he had filed the Civil Revision before the High  Court, the plea is clearly untenable. The Civil Revision Petition  was dismissed on 10.09.1987.  

Above being the position, we are not inclined to interfere  in the matter. Though the question of applicability of Order

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XXI Rule 64 of the Code should not have been considered by  the High Court in view of the dismissal of earlier Civil Revision  Petition, even otherwise no relief could have been granted to  the appellant in view of Article 134 of the Limitation Act.  Substantive justice can be done to the parties if the order  passed by the High Court remitting the matter is maintained.  But the question that has to be considered will not be the  validity of the sale, but the maintainability of the application  for delivery of the property.  

The appeal is accordingly dismissed. No costs.