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1984 DIGILAW 764 (ALL)

S. Karamjit Singh v. Western India Theatre Ltd. , Bombay

1984-09-20

K.N.MISRA

body1984
JUDGMENT K.N. Misra, J. 1. This revision is directed against the order dated 1101977 by which the learned Civil Judge, Lucknow had rejected the objection of the judgmentdebtor filed under Order 21 Rule 66, Code of Civil Procedure. The revisionist had indicated that the valuation of the attached property sought to be sold in execution decree has not been correctly shown by the decreeholder. It was further alleged that the decree can be satisfied simply by sale of only a part of the attached property. The judgmentdebtor has, thus, urged that the proclamation for sale issued is defective. It was also urged that necessary documents were not filed by the decreeholder. The learned Civil Judge finding no merit in the said contentions rejected the objection filed by the judgmentdebtor. Aggrieved by that order, the judgmentdebtor has preferred this revision. 2. Learned counsel for the Revisionist, Sri A. K. Jauhari, urged that the learned Civil Judge has wrongly observed that the judgmentdebtor has not indicated the estimated valuation of the property in his objection filed under Order 21, Rule 66, Code of Civil Procedure. He referred to paragraphs 8 to 12 of the objection wherein the valuation of the property has been indicated even at a very moderate estimate made by the judgmentdebtor. Learned counsel, thus, urged that the impugned order passed by the learned Civil Judge is based on misstatement of facts and deserves to be set aside. 3. I have gone through the averments contained in paragraph Nos. 8 to 12 of the objection under Order 21 Rule 66, Code of Civil Procedure, filed by the judgmentdebtor and I find that in said paragraphs the judgmentdebtor had indicated the valuation of the attached property, which, according to him has been stated on a very moderate estimate made by him. This court is not concerned as to what would be the correct valuation of the property. But the fact remains that when the judgmentdebtor has indicated the estimated valuation of the property to be mentioned in the saleproclamation the executing court should have directed it to be mentioned in the sale proclamation and in not doing so it acted illegally and with material irregularity in exercise of jurisdiction vested in it. This view finds support from the decision in Gajadhar Prasad and others v. Babu Bhdkta Ratan and others. This view finds support from the decision in Gajadhar Prasad and others v. Babu Bhdkta Ratan and others. ( AIR 1973 SC 2593 ) wherein it has been held that mere mention by the execution court in the sale proclamation, of the valuation of the properties (sought to be attached) as stated by the decreeholder, without assigning any reason for the nonmention of the valuation as put by the judgmentdebtor was material irregularity and the judgmentdebtor suffered substantial injury by the sale. 4. In the present case I find that the learned Civil Judge has wrongly mentioned in the order that no countervaluation of the attached property has been mentioned by the judgmentdebtor. Since the judgmentdebtor had very clearly mentioned in the countervaluation of the property in his objection. The learned Civil Judge should have got the same mentioned in the sale proclamation. Having not done so, he has acted illegally in exercise of jurisdiction vested in him. 5. There is yet another reason to quash the impugned order passed by the Civil Judge. The judgmentdebtor has asserted in his objection that the decree can be satisfied only by sale of a part of the attached property. The learned Civil Judge has also observed that it is no doubt true that the aim in this execution is simply to satisfy the decree. If it is found that the decree can be satisfied by sale of a part of the attached property, then that much of property be sold. But inspite of this observation he has rejected the submission of the judgmentdebtor by observing that the objection of the judgmentdebtor has not been to this effect. I find that this is another misstatement of fact in the order. The judgmentdebtor has very clearly mentioned in para 8 of the objection that the movable property alone charged under the decree are worth at least Rs. one lac and even their sale or sale of part of the attached property can satisfy the decree. Thus, the learned lower court should have adverted itself to that question and should have proceeded to consider as to whether the decree can be satisfied by the sale of attached movable properties or not and in the event the decree could not be satisfied by the sale of merely movable properties, then only so much of other property should be sold which may satisfy the decree. 6. 6. It is well settled that only that much of the attached property can be sold in lots which would satisfy the decree. Thus, the learned Civil Judge should have first directed sale of the movable properties and if in his opinion the movable properties would not be sufficient to satisfy the decree then he could also direct certain other attached immovable property to be sold in, order to satisfy the decree in toto, but he could not direct sale of all the attached properties together because the decree could apparently be satisfied by sale of only part of the attached property. 7, In view of what has been said above, this revisions deserves to be allowed and it is, accordingly, allowed and the judgment and order dated 1101977 passed by the learned Civil Judge, Lucknow, is set aside and he is directed to decide the objection filed by the judgmentdebtor afresh in accordance with law and in, the light of observations made above. 8. Since no one has put in appearance on behalf of the opposite parties, I direct the applicant to bear his own costs. Revision allowed