Summary
Order XXI Rule 64 of the C.P.C. lays down that "any court executing a decree may order that any property attached by it and liable to sale or such portion thereof as may seem necessary to satisfy the decree, shall be sold and that the proceeds of such sale, or a sufficient portion thereof shall be paid to the party entitled under the decree to receive the same."
The 5th respondent/decree-holder, S.P.R. Reddy obtained two decrees against the Judgment-debtor Pujari Subbarayudu in two suits viz.; U.S. 15 of 1949 and O.S. 19 of 1953. He filed execution proceedings No. 24 of 1953 in the trial Court for selling the properties belonging to the judgment- debtor in Devanoor and Gudipadu villages in order to satis- fy the decree in U.S. 15 of 1949. He also applied for permission to bid at the auction sale. In the auction sale held on March 2, 1955, the 5th respondent purchased the lands situated in village Devanoor for a sum of Rs.16,880/-. Despite the fact that the sale proceeds of the lands in village Devanoor alone was sufficient to satisfy the decretal amount mentioned in the warrant of sale and the proclamation of sale viz.; Rs. 16,715.50, The Court proceed- ed to sell the properties of the judgment-debtor in village Gudipadu which fetched Rs. 12,500/- and which were purchased by the appellant auction-purchaser. The judg- ment-debtor filed an application on March 31, 1955 to set aside the sale contending, inter alia, that once the sale of the properties in village Devanoor was sufficient to satis- fy the amount mentioned in the sale proclamation, the Court should have stopped the sale as required by the mandatory provisions of Order XXI Rule 64 of the C.P.C. The Trial Court rejected the said application; whereupon the decree- holder on April 20, 1955 obtained an order from the court for rateable distribution of the sale proceeds. In appeal the High Court accepted the plea of the judgment-debtor regarding non-compliance with the provisions of O.XXI Rule 64 C.P.C. and set aside the sale with respect to the proper- ties situated in village Gudipadu.Dismissing the appeal by certificate the Court,HELD: (1) The High Court rightly held that as the sale of the properties in village Devanoor fetched an amount mentioned in the sale warrant. the Executing Court was not justified in proceeding with the sale of the properties in village Gudipadu and should have stopped the sale. [694 F](2) The logical corollary which flows from O.XXI Rule 64 of the Code is that where the amount specified in the proc- lamation of sale for the recovery of which the sale was ordered is realised by sale of certain items, the sale of further items should be stopped. [695 C-D](3) Under Order XXI Rule 64, 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 s,de can be mentioned in the sale proclamation and is sufficient to satisfy the decree, no allowed beyond the decretal amount mentioned in the sale proclamation. In other words. where the sale fetches a price equal to or higher than the amount further sale should be held and the court should stop at that stage. [695 E-F](4) In the facts and circumstances of the present case, there being nothing to show that the decree-holder had approached the court for including the second decretal amount obtained in O.S. 19 of 1953 in the proclamation of sale, the 693Executing Court was not justified in selling the properties situated in village Gudipadu. The fact that the Judgment-debtor did not raise an objection on this ground before the Executing Court rs not sufficient to put him out of court because this was a matter which went to the very root of the jurisdiction of the Executing Court to sell the properties and the non-compliance with the provisions of O.XXI, Rule 64 of the Code was sufficient to vitiate the same so far as properties situated in village Gudapadu were concerned. [695 G-H, 696 A](5) The Court remitted the matter to the Executing Court for an inquiry with the following directions: (i) The appellant will have to return the properties in village Gudipadu to the judgment-debtor and he will be entitled to receive the value of improvements made by him during the time he was in possession of these properties, as determined by the Executing Court in addition to Rs.12,500/-.(ii) He will not he entitled to any interest on the value of the improvements, if he is found to be in posses- sion of the property.(iii) If the Executing Court finds that the auction- purchaser was not in possession of the properties, the judgment-debtor will have to refund the amount of Rs.12,500/- to the appellant with interest at the rate of 12 per cent per annum from the date of sale upto the date of refund. [696 B-E]See the full content of this document
Extract
Takaseela Pedda Subba Reddy VS. Pujari Padmavathamma & Ors.
PETITIONER: TAKASEELA PEDDA SUBBA REDDY Vs.RESPONDENT: PUJARI PADMAVATHAMMA & ORS.DATE OF JUDGMENT28/04/1977BENCH: FAZALALI, SYED MURTAZABENCH: FAZALALI, SYED MURTAZABHAGWATI, P.N.CITATION: 1977 AIR 1789 1977 SCR (3) 692 1977 SCC (3) 377CITATOR INFO : F 1990 SC 119 (8)ACT: Code of Civil Procedure, (Act V of 1908), 1908--OrderXXI, Rule 64--Scope of--Meaning of the words "as may seem necessary to satisfy the decree".JUDGMENT: CIVIL APPELLATE JURISDICTION: C.A. No. 2381 of 1968.(From the Judgment and Order dated the 30th M...
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