Madras High Court
K.K.Loganathan vs N.Subramaniam on 25 January, 2021
CRP.NPD.Nos.1590 and 1591 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.01.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.NPD.Nos.1590 and 1591 of 2016
and
CMP.Nos.8626 and 8664 of 2016
CRP.NPD.No.1590 of 2016
1. K.K.Loganathan
2. Arun Prasad
3. Akil Prasad ..Petitioners
Vs.
N.Subramaniam ..Respondent
PRAYER: The Civil Revision Petition is filed under Article 227 of the
Constitution of India, praying to set aside the docket sheet order made in
E.P.No.105 of 2008 in O.S.No.402 of 2005 on the file of the District Munsif
Court at Bhavani dated 11.04.2016.
For Petitioners : Mr.R.Sunil Kumar
For Respondent : Mr.D.R.Arun Kumar
CRP.NPD.No.1591 of 2016
1. K.K.Loganathan
2. Arun Prasad
3. Akil Prasad ..Petitioners
Vs.
V.Venkatachalam ..Respondent
https://www.mhc.tn.gov.in/judis/
CRP.NPD.Nos.1590 and 1591 of 2016
PRAYER: The Civil Revision Petition is filed under Article 227 of the
Constitution of India, praying to set aside the docket sheet order made in
E.P.No.108 of 2008 in O.S.No.135 of 2004 on the file of the District Munsif
Court at Bhavani dated 11.04.2016.
For Petitioners : Mr.R.Sunil Kumar
For Respondent : Mr.D.R.Arun Kumar
COMMON ORDER
These Civil Revision Petitions are directed as against docket sheet
orders passed in E.P.Nos. 105 and 108 of 2008 in O.S.No.402 of 2015 and
O.S.No.135 of 2004 dated 11.04.2016 on the file of the District Munsif
Court at Bhavani.
2. In both the Civil Revision Petitions, the petitioners are judgement
debtor/defendants. The respondent filed the said suits for recovery of money
and in O.S.No.402 of 2005 and O.S.No.135 of 2004 and both the suits were
decreed in favour of the respondents herein. For execution of both the
decrees for recovery of money, the respondents filed an execution petition
in E.P.No.105 of 2008 in respect of O.S.No.402 of 200 and filed an
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CRP.NPD.Nos.1590 and 1591 of 2016
execution petition in E.P.No.108 of 2008 in respect of O.S.No.135 of 2004.
Both the execution petitions were ordered for proclamation of sale, in
respect of the property comprised in Survey No.253/2001 ad-measuring
0.56.5 heaters. In both the suits, the decree amount would come around
Rs.3,00,000/-. The property value has been fixed at Rs.16,00,000/- by the
Court below. The said order of proclamation for sale is challenged in the
present Civil Revision Petitions.
3. The learned counsel for the petitioner raised a ground that when
the property values more than the decree amount, the part or portion of the
property only has to be auctioned to realize the decree amount. He also
pointed out that under Order 21 Rule 64 of the Civil Procedure Code, only
such portion of the property which would satisfy the decree amount could
be sold. It is relevant to extract the provisions under Order 21 Rule 64 of the
Civil Procedure Code as below:-
“64. Power to order property attached to be sold and
proceeds to be paid to person entitled.—Any Court executing a
decree may order that any property attached by it and liable to
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CRP.NPD.Nos.1590 and 1591 of 2016
sale, or such portion thereof as may see 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.
4. In support of his contentions, the learned counsel for the petitioner
also relied upon a judgment reported in (2007) 2 MLJ 901 (T.Govindarajan
-vs-T.Soundarajan), in which, this Court held as follows:-
“11. Under Or.21 R.64 CPC, only such portion of
the property as would satisfy the Decree amount should be
sold. Or.21 R.64 CPC reads as follows :-
"64.Power to Order property attached to be sold
and proceeds to be paid to person entitled – 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
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CRP.NPD.Nos.1590 and 1591 of 2016
Decree to receive the same."
Use of the words "necessary to satisfy the Decree"
clearly indicates that only such portion of the property
necessary to satisfy the Decree could be sold.
12. Holding that sale made in violation of the
mandatory requirement of Or.21 R.64 CPC would be
illegal and without jurisdiction, in 2006 (3) SCC 49
[Balakrishnan Vs. Malaiyandi Konar], the Supreme Court
has held as follows :-
"9. The provision contains some significant words.
They are "necessary to satisfy the Decree". Use of the said
expression clearly indicates the legislative intent that no
sale can be allowed beyond the decretal amount
mentioned in the sale proclamation [see Takkaseela
Pedda Subba Reddi Vs. Pujari Padmavathamma, 1977 (3)
SCC 337]. In all execution proceedings, the Court has to
first decide whether it is necessary to bring the entire
property to sale or such portion thereof as may seem
necessary to satisfy the Decree. If the property is large
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CRP.NPD.Nos.1590 and 1591 of 2016
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 these mandatory requirement
would be illegal and without jurisdiction [see Ambati
Narasayya vs. M.Subba Rao 1989 Supp (2) SCC 693]. The
duty cast upon the Court to sell only such property or
portion thereof as is necessary to satisfy the Decree is a
mandate of the legislature which cannot be ignored.
Similar view has been expressed in S.Mariappa Vs.
Siddappa 2005 (10) SCC 235.
10. In S.S.Dayananda Vs. K.S.Nagesh Rao (1997 (4)
SCC 451) it was held that the procedural compliance with
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CRP.NPD.Nos.1590 and 1591 of 2016
Order 21 Rule 64 of the Code is a mandatory requirement.
This was also the view expressed in Desh Bandhu gupta
Vs. N.L.Anand (1994) (1) SCC 131."
5. In the case on hand, admittedly, the Court below fixed the value of
the said property at Rs.16,00,000/-. Admittedly, the decree amount comes
around Rs.3,00,000/- in both the execution petitions. As pointed out by this
Court, only such portion of the property that is necessary to satisfy the
decree could be sold. Therefore, the above judgment is squarely applicable
to the case on hand.
6. In view of the above discussion, these Civil Revision Petitions are
allowed and the docket orders passed in E.P.Nos. 105 and 108 of 2008 in
O.S.No.402 of 2015 and O.S.No.135 of 2004 dated 11.04.2016 are set
aside. The Execution Court viz., the District Munsif Court is directed to
follow the mandatory requirements under Order 21 Rule 64 of the Civil
Procedure Code and order for proclamation of sale in respect of the part or
portion of the property comprised in Survey No.253/1 ad-measuring 0.56.5
hectors situated at Nagalur Village, Bhavani Taluk to realise the decree
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CRP.NPD.Nos.1590 and 1591 of 2016
amount in both the execution proceedings and complete the entire
proceedings within a period of two months from the date of receipt of a
copy of this order, after giving opportunity of hearing to the judgement
debtor, so as to identify the portion or part of the said property or for
payment of the decree amount. Consequently, the connected Miscellaneous
Petitions are closed. No costs.
25.01.2021
Speaking/Non-speaking order
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To
The District Munsif Court, Bhavani.
https://www.mhc.tn.gov.in/judis/
CRP.NPD.Nos.1590 and 1591 of 2016
G.K.ILANTHIRAIYAN,J.
Kv
CRP.NPD.Nos.1590 and 1591 of 2016
https://www.mhc.tn.gov.in/judis/
CRP.NPD.Nos.1590 and 1591 of 2016
25.01.2021
https://www.mhc.tn.gov.in/judis/
