Iyluri Laxmi Subramanyam vs Batchu Viswanadham

The petitioner is the judgment-debtor. A decree under O. 34, R. 4 of the Civil P.C. (for short ''the Code'') was passed for the sale of hypothecated property. The respondent is bringing the same property to sale. The petitioner filed an application under O.21, R. 83 of the Code to raise the attachment to the extent of item No. 1 E P. Schedule, namely Acs. 4.08 cents so as to enable him to sell the property privately and deposit the F-P. amount. The application was dismissed by the Executing Court on the ground that if permission is granted, it would cause unnecessary delay in execution. Assailing the legality thereof, the present, C.R.P. has been filed.

Sri C. Ananda Reddy the learn counsel for the petitioner contended that O. 21, R. 83 of the Code gives specific powers to the court to specify the period within which a private sale can be negotiated and finalised and the lower Court has committed error of jurisdiction in refusing to accord permission for private sale.

Sri V. L. N. G.K. Murthy the learned Counsel for the respondent has contended that sub-rule (3) of R. 83 of O. 21 prohibits giving of such permission in respect of sale of the mortgaged property. Therefore permission cannot be accorded.

In view of the rival contentions the question that arises for consideration is whether the Executing Court can grant permission for the sale of mortgaged property privately. It is true that under O. 21, R. 83(1) where the order for the sale of immovable property has been made and the Judgment- debtor satisfies the court that the amount of decree may be raised by private sale of such property or some part thereof or any other immovable property of the judgment-debtor, the Court on being satisfied postpone the sale of the property for a period specified therein to enable the judgrnent-debtor to raise the amount under sub-rule (2).

Sub-rule (3) of 0. 21, R. 83 reads thus:

"Nothing in this rule shall be deemed to apply to a sale of property directed to be sold in execution ''of. a decree for sale in enforcement of a mortgage or charge on such property."

It is not in dispute that the decree in execution is one made for sale of immovable property under O. 34, R. 4 of the Code. Operation of O. 21, R. 83(1) comes into play when the property of the judgment-debtor is attached in execution for sale. But sub-rule. (3) of R. 83 of O. 21 expressly provides that for the sale of mortgaged property in execution, the provisions of 0. 21, R. 83 (1)(2) do not apply to such sale. This view was stated by the Division Bench in Kaveribai Ammal by agent S.L. Narayana Rao Vs. B. Mehta and Sons, thus :

"So for as it is an application to extend the time for the purpose of allowing the amount of the decree to be raised by private sale of such property 0. 21, R. 83(2) was expressly forbidden to make such order, and on that ground court had no power to make such an order."

Same is the view in Indar Singh v. Emperor, AIR 1921 Lab 385. I respectfully agree with the above ratio.

The learned Counsel for the petitioner placed reliance on the decision reported in S.K.M. Mohammad Mustafa Maracayar Vs. Udaianachi Ammal, . The ratio in that case applies on all fours in support of the petitioner''s contention, but unfortunately the learned Judge did not take note of the rigour imposed under O. 21, R. 83(3) of the Code nor the ratio in Ankamrna''s case (supra). Therefore, I express my inability to follow the ratio therein. Accordingly I hold that in execution of mortgage decree under O. 34, R. 4, O.21, R. 83(1) cannot be applied by operation a Sub- rule (3) of R. 83 of O. 21.

The next question is whether the respondent should be directed to sell the mortgaged property in entirety. It is not in dispute that the total extent of the property hypothecated is Acs 8-74 cents in Mungada Village Kothapeta Taluk, East Godavari District. Coconut gardens are very valuable properties and the decree debt initially is Rs.12,006/- and with interest it was swelled to Rs.25,000/-. Therefore, O. 34, R. 4 and Rule 5 clearly speak of the sale of even part of hypotheca for realisation, of the decree debt. It is to be remembered that the sale in Court auction would fetch ridiculously low price. Therefore it is for the court to take all reasonable stops like wide publicity for the sale of the property. The petitioner is directed to specify which extent of the hypothecated property would be sufficient to meet the decree debt by sale by the Court. In the first instance the Executing Court should publish the sale of the said specified property and in case after the sale is over and the sale proceeds are not sufficient thereof, then another extent of property may be specified for sale so as to proceed with the realisation of balance decree- debt. The decree-holder shall make wide publication of sate in the village and in the neighbourhood villages so as to attract wide attention of bidders to participate in the bid. Even now it is open to the petitioner to raise funds and discharge the decree-debtor within a period of two months from today. The sale through the Court does not arise in case the execution amount is deposited.

The C.R.P. is accordingly dismissed, but in the circumstances, without costs.

Petition dismissed.