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1970 DIGILAW 284 (KER)

DHARMADEVAN v. KESAVAN

1970-12-22

P.UNNIKRISHNA KURUP, T.S.KRISHNAMOORTHY IYER

body1970
Judgment :- 1. The matter arises in execution. 2. 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 0.21, R.66, C. P. C. that in view of R.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 1946 is a preliminary decree for partition wherein the judgment-debtor in O. S.7 of 1946 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. R.178 of the Madras Civil Rules of Practice which corresponds to R.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. 4. S.51, CPC. 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 under S.51, CPC. is subject to such conditions and limitations as may be prescribed by rules. S.60, "CPC. enumerates the property which is liable to attachment and sale is execution of a decree. Though decrees are not specifically referred to in S.60 (1) of the CPC. The power of court to enforce execution under S.51, CPC. is subject to such conditions and limitations as may be prescribed by rules. S.60, "CPC. enumerates the property which is liable to attachment and sale is execution of a decree. Though decrees are not specifically referred to in S.60 (1) of the CPC. they will be taken in by the clause "all other saleable property, movable 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 S.51 and 60 decrees are liable to be attached and sold in execution of another decree. 0.21, R.53, CPC. deals with attachment of decrees. 0.21, R.53 (1) provides for attachment of decrees either for payment of money or for sale in enforcement of a mortgage or charge. 0.21, R.53 (4) relates to decrees other than those mentioned in sub-rule (I). O.21, R.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. 0.21. R.53 (2) declares the attaching decreeholder 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 0.21, R.53, sub-rule (4). If in view of R.178 of the Madras Civil Rules of Practice such decrees cannot be sold in execution, what is the remedy of the attaching decreeholder. 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 S.60, CPC. that such decrees are not attachable. The attachment of such decrees has only to be under 0.21, R.53(4), CPC. 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' under S.60 (1), CPC. Counsel for the appellants did not demur to these propositions but according to him decrees coming under 0.21, R.53 (4) cannot be sold in court auction in view of R.178 of the Madras Civil Rules of Practice. Such decrees have therefore to be sold in court auction as they are 'other saleable property of the judgment-debtor' under S.60 (1), CPC. Counsel for the appellants did not demur to these propositions but according to him decrees coming under 0.21, R.53 (4) cannot be sold in court auction in view of R.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 0.21, R.53 (4) is invalid. The Madras High Court in Venkalaswamy v. Venkataramana Rao AIR. 1934 Madras 692 (2) while repelling a similar contention and upholding the validity of R.178 of the Madras Civil Rules of Practice observed: "It follows from S.122,51 and S.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 S.51. The result in our opinion is that hough 'decree' as coming within the expression 'all other saleable property' in S.60, Civil PC. can be sold, the High Court has power 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 R.178." The legislature has no doubt prefaced S.51. CPC. with the words "subject to such conditions and limitations as may be prescribed". According to S.2(16), CPC. 'prescribed' means prescribed by rules. The power of the High Court to prescribe rules is contained in S.122, CPC. 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." 7. S.123 to 127 provide the machinery for making the rules under S.122. S.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. 8. S.123 to 127 provide the machinery for making the rules under S.122. S.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. 8. R.178 of the Madras Civil Rules of Practice is certainly inconsistent with S.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 0.21, R.53 (4) in execution of a decree. The conditions and limitations allowed to be prescribed by S.51 cannot deprive the court of its power to enforce execution of a decree completely. In respect of decrees coming under 0.21, R.53 (1), the said rule itself confers the right on the attaching decreeholder 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 0.21, R.16, CPC. R.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 S.51, CPC. On the other hand, when no alternate 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 0.21, R.53 (4), R.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 legis for the satisfaction of the decree debt. The effect of R.178 is only to leave the attachment .levied without being effectuated to satisfy the claims under the decree of the attaching decreeholder. 9. We are unable to follow the decision in Venkataswamy v. Venkataramana Rao AIR. 1934 Madras 692 (2). We hold that in so far as the decrees under 0.21, Rule.53 (4), CPC., R.178 of the Madras Civil Rules of Practice is ultra vires. The second appeal has no merit and it is hereby dismissed. 9. We are unable to follow the decision in Venkataswamy v. Venkataramana Rao AIR. 1934 Madras 692 (2). We hold that in so far as the decrees under 0.21, Rule.53 (4), CPC., R.178 of the Madras Civil Rules of Practice is ultra vires. The second appeal has no merit and it is hereby dismissed. We make no order as to costs. A. N. K. Dismissed.