Subba Navithan vs Veluchami Gounder

Thanikkachalam, J.—This revision is directed against the order passed in E.A. No. 560 of 1991 in E.P. No. 258 of 1990 in O.S. No. 697

of 1985 on the file of the District Munsif, Palani. The judgment-debtor is the petitioner herein. The respondent herein, who is the plaintiff in the suit,

obtained a decree against the petitioner herein. A preliminary decree was passed in the suit on 22.7.1986 and a final decree was passed in I.A.

No. 1442 of 1988 on 16.6.1989. Thereafter, the decree-holder filed E.P. No. 258 of 1990 to realise the decree amount of Rs. 6,020. The

property of the judgment-debtor was brought to sale on four occasions. In the sale proclamation the decree amount is shown as Rs. 6,020. The

value of 4 acres and 48 cents of property was shown as Rs. 67,200. According to the judgment-debtor, the value of the said property would be

about Rs. 1,00,000. The judgment-debtor contended that since the decree amount is only Rs. 6,020, the entire property worth about Rs.

1,00,000 according to the judgment-debtor and Rs. 67,200 according to the decree-holder should not be brought to sale. The judgment-debtor

contended that a portion of the property can be brought to sale so as to satisfy the decree amount. Before the execution court, the judgment-

debtor contended that the provisions of Order 21, Rules 64 and 66, C.P.C. were not properly complied with by the judgment-debtor.

Accordingly, the judgment-debtor requested the execution court to stop the sale. However, the execution court pointed out that the entire property

belonging to the judgment-debtor cannot be divided as requested by the judgment-debtor since the property mortgaged is a single unit. On that

basis the execution court dismissed E.A. No. 560 of 1991 filed u/s 47, C.P.G.

It is against this order, the judgment-debtor is in revision before this Court. The learned Counsel appearing for the petitioner herein submitted

that the decree amount is only Rs. 6,020 and the property admeasuring 4 acres and 48 cents worth about Rs. 1,00,000 need not be brought to

sale to realise the paltry decree amount. In support of his contention, the learned Counsel relied upon a decision of the Supreme Court in the case

of Ambati Narasayya Vs. M. Subba Rao and another, . The learned Counsel appearing for the decree-holder submitted that the property was

brought to sale for four times earlier, but the sale was not fructified. When the property was brought to sale for the fifth time, the judgment-debtor

came forward with this application so as to prevent the decree-holder from realising the decree amount. It was further pointed out that the property

mortgaged is a single indivisible unit and therefore it cannot be divided. According to the learned Counsel the provisions contained in Order 21,

Rules 64 and 66, C.P.C. were not violated in this case. In support of this contention, the learned Counsel appearing for the respondents relied

upon a decision of this Court in the case of P.L. V. Giri v. A. Subramaniam and Anr. (1992)2 L.W. 237.

3.I have heard the rival submissions.

The fact remains that the decree-holder obtained a decree against the judgment-debtor on a mortgage executed by the judgment-debtor. The

suit property was brought to sale. According to the sale proclamation, a sum of Rs. 6,020 is due to the decree-holder. The decree-holder brought

to sale a property admeasuring 4 acres and 48 cents belonging to the judgment-debtor. According to the decree-holder, the value of the said

property is Rs. 67,200. But according to the judgment-debtor the value of the said property would be Rs. 1,00,000. The learned Counsel for the

judgment-debtor contended that the entire property need not be brought to sale and a sale of a portion of the said property would satisfy the

decree amount. But according to the decree-holder the entire property is a single indivisible unit and therefore it cannot be divided. Hence,

according to the decree-holder there is nothing wrong in bringing the entire property to sale.

This point came up for consideration before the Supreme Court in the case of Ambati Narasayya Vs. M. Subba Rao and another, , wherein the

Supreme Court while considering the provisions of Order 21, Rule 64, C.P.C. held as under:

It is of importance to note from this provision that in all execution proceedings, the court has to first decide whether it is necessary to bring the

entire attached 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, in our opinion, is not just a discretion; but an obligation

imposed on the court. Care must betaken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim

in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without

jurisdiction.

On this aspect another decision of the Supreme Court in the case of Direndranath Gorel and Anr. v. Sudir Chandra Gosesh and Ors. (1965) 1

S.C.J. 219, was also brought to my notice. According to the facts arising in the above cited decision, two appeals raised the question of the

validity of the court sale held in contravention of Section 35 of the Bengal Money Lenders Act, 1940 (Bengal Act 10 of 1940). In the appeal

before the Supreme Court, learned Counsel for the appellants in both the appeals contended that whether Section 35 of the Act is mandatory or

directory the sale held in violation of the said provision is only illegal but not a nullity and therefore it can be set aside only in the manner and for

reasons prescribed in Order 21, Rule 90 of the CPC and further that as the respondents did not attend at the drawing up of the proclamation of

sale the sale cannot be set aside at their instance.

While answering these contentions, the Supreme Court held as under:

In the present case the executing court had inherent jurisdiction to sell the property. We have assumed that Section 35 of the Act is a mandatory

provision. If so, the question is whether the said provision is conceived in the interest of the public or in the interest of the person affected by the

non-observance of the provision. It is true that many provisions of the Act were conceived in the interest of the public. But the same cannot be said

of Section 35 of the Act, which is really intended to protect the interest of the judgment-debtor and to see that a larger extent of his property than

is necessary to discharge the debt is not sold. Many situations may be visualised when the judgment-debtor does not seek to take advantage of the

benefits conferred on him u/s 35 of the act. For instance, if the part of the property carved out by the court for sale is separated from the rest of his

property, the value of the remaining property may be injuriously affected by the carving out, in which case the judgment-debtor may prefer to have

his entire property sold so that he may realise the real value of the property and pay part of the sale price towards the decretal amount. He cannot

obviously be compelled to submit to the sale of a part of the property to his disadvantage. A provision intended for his benefit cannot be construed

in such a way to work to his detriment.

This judgment of the Supreme Court was rendered by three learned Judges of the Apex Court. The decision in Ambati Narasayya Vs. M.

Subba Rao and another, , was rendered by two learned Judges of the Apex Court. According to the facts arising in the decision reported in

Direndranath Gorel and Anr. v. Sudir Chandra Gosesh and Ors. (1965) 1 S.C.J. 219, cited supra, the auction sale had taken place and the

application under Order 21, Rule 90, C.P.C. was filed to set aside that sale. But in the present case; the sale has not yet taken place. In the

decision reported in Direndranath Gorel and Anr. v. Sudir Chandra Gosesh and Ors. (1965)1 S.C.J. 219, cited supra, the Supreme Court

rendered its decision on the facts available on record in the light of Section 35 of Bengal Money Lenders Act, 1940 and the provisions of Order

21, Rule 90, C.P.C. But the facts arising in the present case are entirely different.

Yet another decision rendered by a learned single Judge of this Court in the case of P.L.V. Giri v. A. Subramaniam and Anr. (1992) 2 L.W.

237, was also brought to my notice. While considering the facts arising on record in the abovesaid case in the light of provisions of Order 21,

Rules 64,66 and 90, C.P.C., the learned single Judge held as under:

Considering the conduct of the judgment-debtor all along and also the in-built and intrinsic circumstances to be culled out from the facts of this

case, it goes without saying that the executing Court fully applied its mind, taking into consideration the amount of the decree that remains to be

satisfied and other peculiar facts and circumstances of the case, in bringing the entirety of the suit property to sale and such act cannot amount to

bringing more extent of property for sale than what was necessary for the satisfaction of the decree.

In the abovesaid decision, the learned single Judge has also observed that the latter pronouncement of a Bench of two learned Judges of the

Supreme Court in Ambati Narasayya Vs. M. Subba Rao and another, , will have to give way to an earlier pronouncement of a larger Bench of

three learned Judges of the Supreme Court in Direndranath Gorel and Anr. v. Sudir Chandra Gosesh and Ors. (1965) 1 S.C.J. 219.

According to the facts arising in the instant case, the sale has not yet taken place. The decree-holder is trying to bring 4 acres and 48 cents of

property belonging to the judgment-debtor to sale. Even according to the decree-holder, the value of the said property would be Rs. 67,200. But

according to the judgment-debtor, the value of the said property would be about Rs. 1,00,000. The decree amount is stated to be Rs. 6,020.

Under such circumstances, the judgment-debtor contended that sale of a portion of the property would satisfy the decree amount and the entire

property need not be brought to sale in view of the decision of the Supreme Court rendered in Ambati Narasayya Vs. M. Subba Rao and another,

. Under such circumstances, I direct the execution court to consider whether the division of property and sale of a portion of the property would

be advantageous to the judgment-debtor. If that is so, the property may be divided and a portion of the property can be brought to sale.

Accordingly, I set aside the order passed by the execution court in E.A. No. 560 of 1991 and restore the same to the file of the execution court

with a direction to dispose of the same in accordance with law after taking into consideration the direction given above and after giving an

opportunity of being heard to both the parties. Accordingly, the revision stands allowed. However, there will be no order as to costs.