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Subba Naicker Vs. Durai Raj - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1985)2MLJ123
AppellantSubba Naicker
RespondentDurai Raj
Cases ReferredL.P.S. Reddy v. Padmavathamma
Excerpt:
- - padmavathamma [1977]3scr692 while dealing with the words 'necessary to satisfy the decree' occurring in order 21, rule 64, civil procedure code, observes that those words clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation and that where a sale fetches a price equal or higher than the amount mentioned the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the court should stop at that stage......at rs. 3,500/-. the value given by the revision petitioner-judgment-debtor is mentioned in the sale proclamation. the amin has also valued items 1, 2 and 3 at rs. 66,800/-, rs. 28,000/- and rs. 22,800/- respectively.3. the contention of the learned counsel appearing for the petitioner is that the learned district munsif has not followed the provisions of order 21, rule 64, civil procedure code, and there is therefore excessive execution. even at the outset, i must point out that no application for proceeding under order 21, rule 64, civil procedure code, was filed before the trial court. it is not disputed that the propertied in question were attached. as the properties attached are separate items, the court, in my view, cannot sell more than such portion as may be necessary to.....
Judgment:
ORDER

G. Maheswaran, J.

1. This revision is directed against the order of the learned District Munsif, Manamadurai, passed on 30.11.1982 allowing the execution to proceed and fixing a date for proclamation and sale. The respondent obtained a decree in O.S.No. 130 of 1973 on the file of the District Munsif, Manamadurai, against the revision petitioner for Rs. 3,500/-. E.P.No. 103 of 1982 was filed by the decree-holder to realise the amount of Rs. 7,126-15. The decree-holder attached three items of properties worth about more than a lakh. The trial court ordered sale of the property notwithstanding the fact that it was brought to the notice of the court that for a decree debt of Rs. 7,000/- and odd, properties worth several lakhs cannot be brought to sale.

2. From the records it is seen that the judgment-debtor, namely, the revision petitioner has valued first item at Rs. 20,000/-, the second item at Rs. 4,500/-and the third item at Rs. 3,500/-. The value given by the revision petitioner-judgment-debtor is mentioned in the sale proclamation. The Amin has also valued items 1, 2 and 3 at Rs. 66,800/-, Rs. 28,000/- and Rs. 22,800/- respectively.

3. The contention of the learned Counsel appearing for the petitioner is that the learned District Munsif has not followed the provisions of Order 21, Rule 64, Civil Procedure Code, and there is therefore excessive execution. Even at the outset, I must point out that no application for proceeding under Order 21, Rule 64, Civil Procedure Code, was filed before the trial Court. It is not disputed that the propertied in question were attached. As the properties attached are separate items, the court, in my view, cannot sell more than such portion as may be necessary to satisfy the decree. The Supreme Court in L.P.S. Reddy v. Padmavathamma : [1977]3SCR692 while dealing with the words 'necessary to satisfy the decree' occurring in Order 21, Rule 64, Civil Procedure Code, observes that those words clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation and that where a sale fetches a price equal or higher than the amount mentioned the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the Court should stop at that stage. In this case, several items are brought to sale, in execution of the decree. The execution itself was for Rs. 7,126. It would therefore be sufficient if item No. 3 is first sold and that if it is found that the sale does not fetch a price sufficient to cover the decree amount mentioned in the proclamation of sale, the court can then auction item No. 2. If again the sale proceeds are not sufficient to satisfy the decree, then sale of item No. 1 can be proceeded with. If a sale of all items is held that would cause considerable prejudice to the judgment-debtor. As the Court has not applied the provisions of Order 21, Rule 64, Civil Procedure Code, which goes to the root of the matter of jurisdiction, this Court has necessarily to interfere with the order passed by it. On that view, the Civil Revision Petition is allowed and the order is set aside and the matter is remitted to the Court below. The court will order proclamation and sale of item No. 3 first and if it is found that the sale proceeds are not sufficient to satisfy the decree amount, then the sale of other items may be ordered. There will be no order as to costs.


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