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1998 DIGILAW 920 (MAD)

Malaiyandi Konar v. Balakrishnan

1998-07-13

S.JAGADEESAN

body1998
Judgment :- 1. The petitioner is the judgement-debtor in O.S. No. 385 of 1977 on the file of District Munsif, Kulithalai. 2. The respondent herein obtained a decree for recovery of money and in the execution process, the properties of the respondent were attached and brought to sale. The respondent himself purchased the property in Court auction sale and the sale was confirmed on 22.8.1983. Thereafter the respondent filed the petition for seeking delivery of the property. The petitioner herein filed objections stating that the petitioner is not the exclusive owner of the property and he is entitled only for 1/61 share. Moreover the property is not in the possession of the petitioner and as such the respondent is not entitled for actual physical possession. The persons who are in possession and enjoyment of the property cannot be evicted. The lower court has rejected the objections and ordered the petition filed by the respondent for delivery. Against the said order dated 29.6.1994 the present revision has been filed. The court below disposed of the objections stating that there is no merit in the objections raised by the petitioner and hence the delivery is ordered. 3. The order of the lower Court is as follows: — Tamil 4. When the Civil Revision Petition was taken up for final disposal, the petitioner herein represented that he would pay the entire decree amount and the sale may be set aside since the respondent was not put in possession and he may not be prejudiced. 5. Admittedly, the execution petition has been laid for a sum of Rs. 7,300/- The sale is dated 8.7.1981. Considering the lapse of time and also the conduct of the petitioner, I thought it would be better to direct the petitioner to pay the entire decree amount along with 24 per cent interest to the respondent so that everything can be given quietus. Though the counsel for the respondent represented that it is a reasonable offer, subsequently he stated that his client is not agreeable to receive any money and he wants the property. But under the direction of this Court, the petitioner had deposited a sum of “Rs. 35,000/- to the credit of the Civil Revision Petition to show his bona fide. If the interest is calculated upto 24 per cent, the claim in the execution petition total amount comes to Rs. 37,084/-. But under the direction of this Court, the petitioner had deposited a sum of “Rs. 35,000/- to the credit of the Civil Revision Petition to show his bona fide. If the interest is calculated upto 24 per cent, the claim in the execution petition total amount comes to Rs. 37,084/-. Now the petitioner has deposited the amount to show his bona fide and the respondent is not agreeable to receive the amount. It is but necessary that the matter has to go back for fresh disposal. 6. It is admitted by both the counsel that the extent of the property brought to sale is 4 acres 77 cents. There is nothing on record to show that the Court has applied its mind in order to find out whether the entire property has to be sold for the decree amount of Rs. 4,300/- or the E.P. amount of Rs. 7,300/-. When it is the duty of the Court to ascertain as to whether it is necessary to bring the entire property for sale or the property can be divided and a portion can be brought to sale, the executing Court ought to have considered this aspect of the matter and ordered sale. The Supreme Court has held in Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma and other ( 1977 (3) SCC 337 at 340 = 90 L.W. 24 S.N., and after extracting Order 21 Rule 64 CPC, their Lordships in Para 7 of the judgment said thus: — “Under this provision the Executing Court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied. The words “necessary to satisfy the decree” clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation” The said decision was following in the decision in 1989 Supp. (2) S.C.C. 693 = 1991 1 L.W. 602 ( Ambatti Narasayya v. M. Subba Rao and another ) and while considering the same, their Lordships said thus — “Order 30, Rule 64, C.P.C. enjoins 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, is not just a discretion but an obligation imposed on the Court. The sale held without examining this aspect and not in conformity with this mandatory requirement would be illegal and without jurisdiction. ” In that case, the Execution petition was filed for recovery of a sum of Rs. 2,400/- and, to realise that amount, an area measuring 10 acres were sold for Rs. 17,000/- A contention was raised that since the land being one which could not be divided, such a large area was sold, Court held that such a contention was against common-sense and cannot be accepted. Out of 10 acres, the Court could have conveniently demarcated a portion and sold it.” In the present case for recovery of a sum of Rs. 4,000/- and odd, nearly 5 acres of lands have been sold, obviously which is more than the extent necessary to satisfy the decree amount. In paragraph 8, their Lordships further went on and said thus — “The land is not indivisible. Nor division is impracticable or undesirable. Out of 10 acres, the court could have conveniently demarcated a portion and sold it Unfortunately, no such attempt was made and it was not even thought of. The Court has blindfold sold the entire property. This is a usual feature which we have noticed in most of the execution cases. We must deprecate this tendency. There is a duty cast upon the Court to sell only such property or a portion thereof as necessary to satisfy the decree. The Court has blindfold sold the entire property. This is a usual feature which we have noticed in most of the execution cases. We must deprecate this tendency. There is a duty cast upon the Court to sell only such property or a portion thereof as necessary to satisfy the decree. It is a mandate of the legislature which cannot be ignored.” (Emphasis supplied) In (1997) 4 S.C.C. 451 (S.S. Dayananda v. K.S. Nagesh Rao and others) it was held thus: — “It is seen that the High Court has noted that the procedural compliance of Order 21, Rule 64 C.P.C. was not adhered to which is a mandatory requirement as held by this Court in Desk Bandhu Gupta v. N.L. Anand & Rajinder Singh . Equally the sale consideration of the property was in excess of the execution.” Emphasis supplied) For that reason, the sale was held to be illegal and set aside.” In a recent judgment reported in Subramaniyam and five others v. Sadaya Padayachi and five others (1998 1 L.W., 550) the Honble Thiru Justice S.S. Subramani, after considering all the earlier judgments has held as follows: “As held in the decision reported in 1994 (1) S.C.C. 131 = 1994 1 L.W. 49 ( Desh Bandhu Gupta v. N.L. Anand & Rajender Singh ) and also in 1989 Sup. (2) SCC 693 = 1991 1 L.W. 602 (supra), the Court sale was one without jurisdiction. If is is one without jurisdiction and a nullity, the application can come only under Section 47, CPC and not under Order 21, Rule 90, C.P.C.” Since the sale itself is held nullity, the respondent herein cannot claim any relief pursuant to the said sale. 7. In view of the abovesaid principle, I am of the view that the Executing Court, without application of mind, has directed the sale of the property of nearly 5 acres for a paltry sum of Rs. 4,000/- and odd. Now the petitioner has shown his bona fide by depositing the amount of Rs. 35,000/- and I am of the view that the parties can be given an opportunity to establish the same. 4,000/- and odd. Now the petitioner has shown his bona fide by depositing the amount of Rs. 35,000/- and I am of the view that the parties can be given an opportunity to establish the same. It is open to the petitioner to convince the lower Court as to the which portion of the property is sufficient to satisfy the decree amount and the lower Court is directed to consider the matter afresh, in the light of the decisions of the Supreme Court as well as the judgment of this Court referred above, dispose of the claim of the parties, in accordance with law. Since the Executing Court has not acted in accordance with the above laid principles of the Supreme Court. I am of the view that the sale itself is liable to be set aside even though no application has been filed by the petitioner. However, the objection filed by the petitioner is directed to be treated as a petition under Section 47 C.P.C. Hence, the matter is remitted back to the Executing Court with direction to dispose of the objection petition afresh. The executing court can also consider the need for the sale of property in view of the deposit made by the petitioner. 8. Registry is directed to transfer the deposit made by the petitioner in this C.R.P., to the credit of E.P. No. 80 of 1993 in O.S. No. 385 of 1997 on the file of District Munsif, Kulithalai. 9. In the result, the Civil Revision Petition is ordered accordingly.