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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.