Ganapathi Gounder vs The Branch Manager, Indian Overseas Bank and Others

Jagadeesan, J.—Though the respondents have been served they have not chosen to appear either in person or through counsel. The first

respondent is the decree holder and the petitioner is the judgment-debtor. The first respondent filed E.P. No. 127 of 1991 to execute the decree in

O.S. No. 148 of 1989 on the file of the Sub-Court, Tiruppur. The execution was levied for recovery of a sum of Rs. 1,30,000. The first

respondent has filed counter, in which, he has stated as follows:

In the recent days often the announcement of Palladam as backward area by the Government the land value has risen considerably. The

agricultural lands are now converted into House sites so also the value of the respondent lands have become increased. The nearby lands have

been converted into house sites and sold as house sites. An extent of 1.50 acres out of 7.10 acres will be sufficient to satisfy the decree amount.

The petitioner has purposely valued the entire extent of property for Rs. 25,000. This shows the intention of the petitioner is only to knock away

the property for a song.

Without considering the objections raised by the first respondent with regard to the sale of a portion of the property to realise the decree debt, the

court below has passed the order as follows:

The decree holder value''s property at Rs. 25,000 the judgment debtor has given the value at 7,00,000 the court bailiff who tested the property

has assessed the value at Rs. 2,00,000. The upset price is fixed at Rs. 2,00,000 proclaim and sell on 29.7.1992 further hearing 31.7.1992.

When a property of seven acres is brought to sale with two tiled sheds and a 7 1/2 H.P. Motor Pumpset, the court below has to consider as to

whether the property can be divided into portions and whether such portions can be sold to satisfy the E.P. amount. Order 21, Rule 23(2) of

C.P.C. makes it the mandatory duty of the executing court to consider the objections raised by the parties in the E.P. and make such order as it

thinks fit. The non-consideration of the objections will naturally affect the validity of the order.

Further it has been held by the Supreme Court, in the case of Desh Bandhu Gupta v. Anand Rajinder Singh (1994) 1 L.W. 49 as follows:

However, there is considerable force in the contention of the appellant that the procedure prescribed under Order 21, Rule 66 was flagrantly

violated by the executing court. We have already noted the order of the court to conduct the sale. For judging its legality and validity, it would be

desirable to have a bird''s eye view of the procedure for sale of immovable property in execution. On an application for execution filed under

Order 21, Rule 5 the court shall ascertain the compliance of the pre-requisites contemplated under Rule 17 and on finding the application in order,

it should be admitted and so to make an order, thereon to issue notice under Rule 22, subject to the conditions specified therein, if a notice was

served on the judgment debtor as enjoined under Order 5 but, if he did not appear or had not shows cause to the satisfaction of the court, under

Rule 23 ""the court shall order the decree to be executed"". If an objection is raised to the execution of the decree, by operation of Sub-rule (2)

thereof, ""the court shall consider such objections and make such order as it thinks fit."" Thereafter, in the case of a decree for execution against

immovable property as attachment under Rule 54 should be made by an order prohibiting the judgment-debtor from transferring or creating

encumbrances on the property....

Proviso to Sub-rule (4) of Rule 17 of Order 21 provides the procedure to receive the application for execution of the decree. In the case of a

decree for payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree.

Rule 64 of Order 21 charges the executing court that it may order to attach any property to the extent that ""such portion thereof as may seem

necessary to satisfy the decree would be sold."" It is also enjoined under Sub-rule (2)(a) of Rule 66 of Order 21 that where a part of the property

would be sufficient to satisfy the decree the same be sold by public auction. Form 27 of Appendix E of the schedule also directs the court

auctioneer to sell so much of the said property as shall realise the sum the said decree and costs. The code, therefore, has taken special care

charging the duty on the executing court and it is salutary duty and a legislative mandate to apply it is salutary duty and a legislative mandate to

apply its mind before settling the terms of proclamation and satisfy that if part of such property as seem necessary to satisfy the decree should be

sold if the sale proceeds or portion thereof is sufficient for payment to the decree holder or the person entitled under the decree to receive the

amount and so much of that property alone should be ordered to be sold in execution. In Ambati Narasayya Vs. M. Subba Rao and another, , this

Court held that it is the duty cast upon the court under Order 21, Rule 64 to sell only such property or a portion thereof as may be necessary to

satisfy the decree. It is a mandate of the legislature which cannot be ignored. Therein for execution of a decree of a sum of Rs. 2,000 and costs,

the appellant''s 10 acres land was brought sale which was purchased for a sum of Rs. 17,000, subject to discharge of a prior mortgage to Rs.

2,000. This Court held that without the court''s examining whether a portion of the property could be sold, the sale held was not in conformity with

the requirement of Order 21, Rule 64 and it was held to be illegal and without jurisdiction. The sale was set aside and the court was directed to put

the judgment debtor in possession of the land and to refund the sale amount to the auction purchaser. Further direction was given to execute the

decree in accordance with the law. In Mangal Prasad v. Krishna Kumar AIR 1992 S.C. 1957, a shop was sold to realise a decrees debt of about

Rs. 29,000 and the sale price at the auction was Rs. 1.00 lac and odd. This Court finding that it is excessive execution, set aside the sale and

directed return of the sale amount to the auction purchaser with interest at 12%. In Takkaseela Pedda Subba Reddi Vs. Pujari Padmavathamma

and Others, , to recover the decree debt in two decrees, the properties situated in two difference villages were brought to sale. In the first instance

the property in ''D'' Village fetched a sum of Rs. 16,880, which was sufficient to satisfy the decretal amount. The property in ''G'' Village was also

sold which fetched a sum of Rs. 12,000. This Court set aside the sale of ''G'' Village. Admittedly the site in sale is to extent of 550 sq. yards,

situated in a commercial area around which the petroleum installations are established. Though, as contended by Sri Madhava Reddy, that there

may be building regulation for division of the property into portions, but no attempt was made to sell a portion of the property, may be 100 yards

or 150 yards, out of it or undivided portion thereof have satisfied the decree debt. It could be legitimately included that the court did not apply its

mind at all to this aspect as well.

As the executing court totally failed to apply its mind with regard to the objections raised by the judgment debtor in his counter, the order of the

Executing Court dated. 16.6.1992 settling the sale proclamation is set aside. The lower court is directed to consider the claim of the petitioner as

stated in the counter and in accordance with the principles laid down by the Supreme Court as extracted above and pass orders afresh. The civil

revision petition is ordered accordingly.

In view of the order passed in the civil revision petition, no order is necessary in the C.M.P. and the same is dismissed.