M. Chandrashekar vs G. Amaresh

Mohan M. Shantana Goudar, J.—Respondent No. 1 herein filed O.S. No. 143/2004 for recovery of certain sums of money. The decree came to be passed against respondent No. 3 and others for a sum of Rs. 58,000/- along with the interest at the rate of 24% per annum. As on the date of filing of the execution petition, the judgment debtor was due in a sum of Rs. 1,47,634/-, including the interest. Execution Petition No. 88/2004 came to be filed for recovery of the said sum. He did not pay or deposit the dues. Sale proclamation was issued for Rs. 1,47,634/-. Ultimately his residential house situated in Bellary City measuring 21''x67'' was put to auction. The auction proceedings took place wherein the petitioner herein was the highest bidder. Sale was confirmed in favour of the petitioner on 12.4.2012. However, the sale certificate is not issued in favour of the petitioner. By the time the petitioner could file an application for issuance of sale certificate, respondents 4 and 5 who are the children of respondent No. 3 filed I.A. Nos. 2, 3 and 5. I.A. No. 4 is filed by the petitioner herein.

I.A. No. 2 is filed by respondents 4 under Order XXI Rule 90 r/w. Section 94 of CPC to set aside the spot sale dated 15.3.2012 and the Court sale dated 21.3.2012 in respect of the suit property.

I.A. No. 3 is filed by respondents 4 herein under Order XXI Rule 92 (Proviso) r/w. Section 94 of CPC to recall the order dated 12.4.2012 confirming the sale.

I.A. No. 4 is filed by the auction purchaser-petitioner herein under Order XXI Rules 92 and 94 of CPC for issuance of sale certificate in favour of the auction purchaser, i.e., in his favour as per the order dated 12.4.2012.

I.A. No. 5 is filed by respondent No. 5 under Order XXI Rule 89 of CPC seeking permission to deposit a sum No. of Rs. 2,00,534/- in order to get the sale set aside. Along with the application, the Demand Drafts are also submitted to the Court to show her bona fides for satisfying the money decree. The amounts involved in the Demand Drafts would cover and satisfy the entire decretal amount and interest thereon as on that day.

Respondents 4 and 5 herein (i.e., the applicants in I.A. Nos. 2, 3 and 5) are the children of respondent No. 3. Out of them, respondent No. 5 is minor daughter represented by her guardian. Respondent No. 3 is the judgment debtor. He did not contest the proceedings and ultimately the auction sale was ordered and his residential house was sold. Respondents 4 and 5 being the children of respondent No. 3 filed O.S. No. 102/2006 for partition and separate possession against their parents and the preliminary decree is passed as far back as on 17.10.2008. However, in the said decree it is specifically made clear that the decree in O.S. No. 143/2004, i.e., the decree in O.S. No. 102/2006 is subject to the decree in O.S. No. 143/2004.

The suit property belonging to respondents 3, 4 and 5 is sold for Rs. 10,58,000/- in the auction. The suit property is measuring 21''x67''. As aforementioned, the decreetal amount is Rs. 58,000/- with interest thereon. As on the date of filing of the execution petition, the total amount due was Rs. 1,47,634/-. It is not in dispute that the said amount was not paid or deposited by the judgment debtor as on the date of auction.

The applications filed by respondents 4 and 5 i.e., I.A. Nos. 2, 3 and 5 are rejected by the executing Court and I.A. No. 4 filed by the auction purchaser-petitioner herein is allowed. Appeal came to be filed by the respondents 4 and 5 herein in M.A. Nos. 16 and 17 of 2013, which came to be allowed and the order of the executing Court was set aside.

Smt. Vidya, learned advocate appearing on behalf of the petitioner herein (auction purchaser) submits that respondents 4 and 5 have no locus standi to file applications for setting aside the sale, etc., inasmuch as they were not parties either to the suit or to the executing proceedings and consequently the appeals filed by them are not maintainable. According to her, since the judgment debtor has kept quiet without opposing the execution proceedings, as a natural corollary, the auction is held and the property came to be sold, for execution of the decree.

The said submissions are opposed by the learned advocate appearing for the respondents.

The petitioner''s counsel may not be justified in arguing that respondents 4 and 5 being the children of respondent No. 3 cannot be treated as third parties and therefore they cannot file application for setting aside the sale. Undisputedly, they are the children of respondent No. 3. They have filed the suit for partition and separate possession in O.S. No. 102/2006 and the same is already decreed on 17.10.2008. The said decree is ordered to be subject to the decree passed in O.S. No. 143/2004. Hence, they are entitled to participate in the execution proceedings in Execution Petition No. 88/2004 (which arises from decree in O.S. No. 143/2004) and oppose the same.

Smt. Vidya learned counsel for the petitioner further submits that the property was impartiable, inasmuch it is a smaller extent and therefore the executing Court is justified in selling the entire property.

The said submission cannot be accepted, inasmuch as the property is measuring 21''x67'' situated at Bellary City could have been divided to certain extent so as to sell smaller extent out of the total extent of 21''x67'', to satisfy the decretal amount.

The suit property is measuring 21''x67'' and it is sold for Rs. 10,58,000/-. The decretal amount with interest was Rs. 1,47,634/- as on the date of execution petition. Therefore, the executing Court before issuing sale proclamation ought to have followed the procedure as contemplated in Order XXI Rule 66 of CPC. Since only a part of the property would be sufficient to satisfy the decree, such part only ought to have been sold by the executing Court. It is not open for the executing Court to sell the entire property for Rs. 10,58,000/- though the decree as well as the sale proclamation are only for Rs. 1,47,634/-. Aforementioned facts clarify that only 1/6th or 1/7th portion of the property could have been sold to satisfy the decretal amount. In this view of the matter, the interest of justice and the equity demands that the auction sale should be set aside; otherwise, the judgment and debtor and his family members would be put to irreparable loss. It is not open for the executing Court to sell the higher extent of the property for satisfying the decree for a smaller amount. Since the procedure as contemplated under Order XXI Rule 66 is not followed while issuing the sale proclamation for restricting the sale to a smaller portion to satisfy the decreetal amount, the first appellate Court is justified in setting aside the same. Since the justice is done by the first appellate Court, no interference is called for.

Before parting with the matter, it is made clear that respondents 4 and 5 herein shall satisfy the decretal amount with interest thereon as on this day by depositing the entire amount by way of Demand Drafts within six weeks from this day, if not already deposited. Failing which, further proceedings in execution petition shall take place as per law.

Writ petitions are dismissed with the aforesaid observations.