Dharmadevan and Others vs Kesavan Unniparan and Another

Krishnamookthy Iyer, J.—The matter arises in execution. The decree-holder in O. S. 7 of 1946 on the file of the principal Subordinate Judge''s Court. Ottapalam who is represented by the first respondent sought to attach and sell the interest of his judgment-debtor in the decree in O. S. 21 of 1946 pending in the same court. In pursuance to E. P. 83 of 1961 the decree in O. S 21 of 1946 was attached. The appellants who are the legal representatives of the judgment-debtor contended in reply to the notice issued under Order 21, Rule 66, C. P. C. that in view of Rule 178 of the Madras Civil Rules of Practice the decree in O. S. 21 of 1946 cannot be sold in execution of another decree. The learned Subordinate Judge overruled the objection and his decision was confirmed in appeal by the District Judge. The second appeal is filed against the decrees of the Courts below.

The decree in O. S, 21 of 1046 Is a preliminary decree for partition wherein the judgment-debtor in O. S. 7 of 1046 has been allotted a share. The question is whether it is open to the decree-holder to sell the interest of the judgment debtor covered by this decree in auction. Rule 178 of the Madras Civil Rules of Practice which corresponds to Rule 287 of the Travancore-Cochin Civil Rules of Practice reads:

"No decree shall be ordered to be sold in execution of another decree." The rule only prohibits the sale of a decree in execution of another decree and does not prevent its attachment. The submission for the appellant was that after attachment the decree cannot be sold in view of the above rule.

Section 51. C. P. C. enumerates the various modes in which the court may order the execution of a decree; Clause (b) enables the court to enforce execution by attachment and sale or by sale without attachment of any property. The power of court to enforce execution u/s 51. C. P. C. is subject to such conditions and limitations as may be prescribed by rules. Section 60. C. P. C. enumerate the property which is liable to attachment and sale in execution of a decree. Though decrees arc not specifically referred to in Section 60(1) of the C- P. C. they will be taken in by the clause "all other saleable property, move-able or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit". In view of Sections 51 and 60 decrees are liable to be attached and sold in execution of another decree. Order 21, Rule 53, Civil) P. C. deals with attachment of decrees. Order 21, Rule 53 (1) provides for attachment of decrees either for payment of money or for sale in enforcement of a mortgage or charge. Order 21. Rule 53 (4) relates to decrees other than those mentioned in Sub-rule (1). Order 21. Rule 53 Sub-rules (2) and (3) enable the holder of a decree who has attached another decree of the nature specified in Sub-rule (1) to execute the attached decree in the same manner as the holder thereof. Order 21. Rule 53 (2) declares the attaching decree-holder as the representative of the holder of the attached decree. But there is no such provision In the Code for execution of decrees of the nature specified in Order 21. Rule 53. Sub-rule (4). If in view of Rule 178 of the Madras Civil Rules of Practice such decrees cannot be sold in execution, what is the remedy of the attaching decree-holder. The preliminary decree for partition which has been attached in the case before us is not executable. It is not possible to hold in view of Section 60, Civil P. C. that such decrees are not attachable. The attachment of such decrees has only to be under Order 21, Rule 53 (4), Civil P. C. But the rule is silent as to how the fruits of the decree have to be realised after attachment. Such decrees have therefore to be sold in Court auction as they are other saleable property of the judgment-debtor'' u/s 60(1), C. P. C. Counsel for the appellants did not demur to these propositions but according to him decrees coming under Order 21, Rule 53(4) cannot be sold in court auction in view of Rule 178 of the Madras Civil Rules of Practice. The plea on behalf of the respondents is that the said rule in so far as it prohibits the court sale of decrees taken in by Order 21. Rule 53(4) is invalid. The Madras High Court in Syed Abdul Hameed Sahib and Another Vs. Syed Unnissa Bibi and Others, while repelling a similar contention and upholding the validity of Rule 178 of the Madras Civil Rules of Practice observed:

"It follows from Sections 122. 51 and Section 2(16) read together, that the High Court can prescribe by rules, conditions and limitations subject to which the Court may order execution of the decree in the way specified in Section 51. The result in our opinion is that though ''decree'' as coming within the expression ''all other saleable property'' in Section 60. Civil P. C. can be sold, the High Court has Dower to make a rule, if it desires to do so stating that no decree shall be ordered to be sold in execution of another decree: and that is what has been done by the Madras High Court in Rule 178." The legislature has no doubt prefaced Section 51. C. P. C. with the words "subject to such conditions and limitations as may be prescribed". According to Section 2(16). C. P. C. ''prescribed'' means prescribed by rules. The power of the High Court to prescribe rules is contained in Section 122, C. P. C. which reads:

"High Courts not being the Court of a Judicial Commissioner may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule." Sections 123 - 127 provide the machinery for making the rules u/s 122. Section 128(1) reads:

"Such rules shall be not inconsistent with the provisions in the body of this Code, but, subject thereto, may provide for any matters relating to the procedure of Civil Courts."

Rule 178 of the Madras Civil Rules of Practice is certainly inconsistent with Section 51(b) which deals with powers of courts to enforce execution by attachment and sale or by sale without attachment of any property. The effect of Rule 178 of the Madras Civil Rules of Practice is to totally prohibit the sale of a decree of the category in Order 21. Rule 53 (4) in execution of a decree. The conditions and limitations allowed to be prescribed by Section 51 cannot deprive the court of its power to enforce execution of a decree completely. In respect of decrees coming under Order 21. Rule 53(1), the said rule itself confers the right on the attaching decree holder to enforce execution of his decree by executing the attached decree he being treated as the representative of the holder of the attached decree. In such cases, there is no necessity to sell such decrees, as the purchaser in auction can only execute the said decree under Order 21, Rule 16. C. P. C. Rule 178 of the Madras Civil Rules of Practice in so far as it prohibits the court sale of such decrees cannot be said to be inconsistent with Section 51, C. P. C. On the other hand, when no alternative method is prescribed either by the body of the Code or by the rules in the Schedule for the attaching decree-holder to effectuate the; attachment of the decrees in Order 21, Rule 53(4). Rule 178 of the Madras Civil Rules of Practice prohibiting court sale of such decrees can only be invalid. An attachment has merely the effect of placing the property in custodia legist for the satisfaction of the decree debt. The effect of Rule 178 is only to leave the attachment levied without being effectuated to satisfy the claims under the decree of the attaching decree-holder.

We are unable to follow the decision In Syed Abdul Hameed Sahib and Another Vs. Syed Unnissa Bibi and Others, . We hold that in so far as the decrees under Order 21. Rule 53 (4). Civil P. C., fare concerned). Rule 178 of the Madras Civil Rule of -- Ed.) Practice is ultra vires.

The second appeal has no merit and it is hereby dismissed. We make no order as to costs.