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Radhashyam Nayak Vs. Sukadev Naik - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 548 of 1982
Judge
Reported in60(1985)CLT424; 1985(II)OLR551
ActsCode of Civil Procedure (CPC) , 1973 - Order 21, Rule 17(4)
AppellantRadhashyam Nayak
RespondentSukadev Naik
Appellant AdvocateR.N. Panigrahi and ;D.P. Mohapatra
Respondent AdvocateA.K. Sahu, Adv.
DispositionPetition allowed
Cases ReferredRavi Nagabhushanam v. Neti Gopala Krishna Morty. A. I. R.
Excerpt:
.....rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - ' from the aforesaid provision it is clear that while considering the question of attachment of property in execution of a decree for payment of money, the court must be satisfied that the value of the property attached shall, as nearly as may be, correspond with the amount under the decree. 4. the provision under the proviso to order 21, rule 17(4) casts a duty on the court to be satisfied about the valuation of the property before its attachment. it may be noted here that after the property is attached, the attached property can be released only after the decree is fully satisfied......1982 rejecting his objection under order 21, rule 17, civil procedure code to the valuation of the property attached.the opposite party (decree-holder), filed c. s. no. 122 of 1978 before the subordinate judge, balasore, for partition of the suit property. while disposing of the suit the court directed the petitioner (defendant) to pay to the opposite party (plaintiff) 30 quintals of paddy for bringing about equalisation of the shares allotted to the parties. the price of the paddy was assessed at rs. 3,150/- at the price prevailing then. thereafter the opposite party levied execution for realisation of the sum of rs. 3,150/-and sought to attach ao. 46 2/3rd decimals of land under plot no. 318, khata no 117 in mouz'a gourdia in balasore district along with house standing thereon.....
Judgment:

D.P. Mohapatra, J.

1. The judgment-debtor in execution case No. 11 of 1981 pending before the Subordinate Judge, Balasore, has filed this petition under Section 115, Civil Procedure Code challenging the order dated 5.5. 1982 rejecting his objection under Order 21, Rule 17, Civil Procedure Code to the valuation of the property attached.

The opposite party (decree-holder), filed C. S. No. 122 of 1978 before the Subordinate Judge, Balasore, for partition of the suit property. While disposing of the suit the Court directed the petitioner (defendant) to pay to the opposite party (plaintiff) 30 quintals of paddy for bringing about equalisation of the shares allotted to the parties. The price of the paddy was assessed at Rs. 3,150/- at the price prevailing then. Thereafter the opposite party levied execution for realisation of the sum of Rs. 3,150/-and sought to attach Ao. 46 2/3rd decimals of land under Plot No. 318, Khata No 117 in Mouz'a Gourdia in Balasore district along with house standing thereon belonging, to the petitioner. When the question of attachment of the aforementioned property came up before the executing Court the petitioner filed an objection stating inter alia that the proper and reasonable valuation of the proparty would be at least Rs. 25,000/-and hence attachment of the proparty sought is not necessary to meet the decretal dues of the decree-holder. The opposite party, on the other hand contended that the attachment of the property was necessary since the share of the judgment-debtor therein was l/3rd.

Both the parties led evidence in support of their stand. The executing Court on consideration of the materials on record came to hold that the valuation of the property would be Rs, 10,000/-. The Court did not accept the contention of the opposite party that the interest of the judgment-debtor in the property attached was only to the extent of l/3rd. It may be mentioned here that the judgment-debtor took the stand that the entire property attached exclusively belonged to him. Considering the provisions under the proviso to Sub-rule (4) of Rule 17 of Order 21, C. P. C. the Court held that the value of the property attached may be taken as near about the decretal amount. This order is being challenged in the revision petition.

2. Before proceeding to examine the impugned order on merit it will be helptul to quote the provision under Order 21, Rule 17(4):

'When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree accordingly to the nature of the application :Provided that, in the case of a decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree.'

From the aforesaid provision it is clear that while considering the question of attachment of property in execution of a decree for payment of money, the Court must be satisfied that the value of the property attached shall, as nearly as may be, correspond with the amount under the decree. The provision is intended to avoid unnecessary attachment of properties much in excess of what is necessary to meet the decretal dues in the execution case and thereby bring about the harassment of the Judgment-debtor. In a case where it is brought to the notice of the Court that the valuation of the property proposed to be attached is much more than the amount involved in the execution case, the Court has to examine and attach only such part of the property which, as nearly as possible, would be necessary to meet the amount due under the decree.

3. Shri R. N. Panigrahi, learned counsel for the petitioner contends that in view of the finding of the executing Court that reasonable valuation of the property sought to be attached would be Rs. 10,000/- his observation that it, as nearly as may be, corresponds with the amount due under the decree is ex facie, inconsistent and unsupportable. Shri A. K. Sahu, appearing for the opposite party submits that even if the property attached is valued at a sum higher than t he amount required to satisfy the decree, the judgment-debtor can obtain release of the rest of the property at the time of sale.

4. The provision under the proviso to Order 21, Rule 17(4) casts a duty on the Court to be satisfied about the valuation of the property before its attachment. It is not a mere formality but is intended to serve a purpose. As indicated earlier, the purpose is to avoid harassment to the judgment-debtor by unnecessarily attaching his property which may not be required to be sold for satisfying the decretal amount. It may be noted here that after the property is attached, the attached property can be released only after the decree is fully satisfied. In view of this analysis the contention of Shri Sahu that the impugned order needs no interference since the judgment-debtor has an opportunity of getting release of the property attached at the time of sale has to be rejected. The view taken by me gains support from the decision of the Andhra Pradesh High Court in the case of Ravi Nagabhushanam v. Neti Gopala Krishna Morty. A. I. R. 1969 A. P. 184, where the Court has made the following observations :

'If the property of which value is more than the amount due is attachd without any objection being raised in that behalf, the only other stage when this question can be considered is at the time of sale- Under Rule 64, the Court executing a decree may order that any property attached or such portion thereof as may seem necessary to satisfy the decree shall be sold. It is thus permissible under this Rule to order the sale of a portion of the attached property. It does not however provide for raising the attachment of the property not directed to be sold. The attachment will obviously continue.

XX XX XXA reading of these provisions of Order 21 leads us to the conclusion that at the time of attachment, it has to be considered, whether the value of the property sought to be attached is more than the amount due and care should be taken to attach only such property whose value as nearly as may be is equal to the amount due under the decree.'

Examined in the light of the principles discussed above the impugned order in the present case is unsustainable. The executing Court having itself found the property proposed to be attached to be valued at Rs. 10,000/- which is much in excess of the amount due in the execution case (Rs. 3,450/-) was not justified in rejecting the objection of the petitioner.

5. In the result, the revision petition is allowed, and the impugned order dated 5. 5. 1982 of the Subordinate Judge, Balasore, in execution case No. 11 of 1981 is set aside. The executing Court is directed to reconsider the objection of the judgment-debtor-petitioner regarding valuation of the property and dispose it of, in accordance with law, keeping in view the observation made in this order. Both the parties shall bear their respective costs of this proceeding.


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