Madras High Court
K.Suseela vs Ponnusami on 4 October, 2021
C.R.P.(NPD).No.3590 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.10.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(NPD).No.3590 of 2016
1.K.Suseela
2.K.Saradha .. Petitioners
Vs.
1.Ponnusami
2.Thangavelu (died)
3.Arukani
4.Gomathi
5.Baskaran .. Respondents
[RR 3 to 5 brought on record as LRs of the deceased R2
viz., Thangavelu, vide order of this Court dated
16.09.2021 made in C.M.P.No.13198 & 13200 of 2021
in C.R.P.(NPD).No.3590 of 2016]
Prayer: This Civil Revision Petition is filed under Section 115 of Civil
Procedure Code, against the judgment and decree dated 19.07.2016 made in
A.S.No.30 of 2016 on the file II Additional District Court, Erode confirming
the fair and decretal order dated 28.08.2015 made in E.A.No.56 of 2015 in
1/20
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C.R.P.(NPD).No.3590 of 2016
E.P.No.55 of 2013 in O.S.No.41 of 2012 on the file of the Sub Court,
Perundurai.
For Petitioners : Mr.N.Manokaran
For R1 : No appearance
For R2 : Died
For RR 3 to 5 : Mr.I.C.Vasudevan
ORDER
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
This Civil Revision Petition is filed against the judgment and decree
dated 19.07.2016 made in A.S.No.30 of 2016 on the file II Additional District
Court, Erode, confirming the fair and decretal order dated 28.08.2015 made
in E.A.No.56 of 2015 in E.P.No.55 of 2013 in O.S.No.41 of 2012 on the file
of the Sub Court, Perundurai.
2.The petitioners are defendants in O.S.No.41 of 2012 on the file of the
Sub Court, Perundurai. The 1st respondent filed the said suit for recovery of
money based on promissory note. The petitioners filed written statement on
26.08.2011. After contest, the suit was decreed by the judgment and decree
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C.R.P.(NPD).No.3590 of 2016
dated 24.07.2013. The petitioners did not file any appeal. The 1st respondent
filed E.P.No.55 of 2013 to execute the decree to attach and bring the property
for attachment and sale of the property. The petitioners entered appearance in
the E.P. but, did not file any counter. Subsequently, they were set exparte and
property sought to be sold was attached. The 1st respondent filed sale papers
and the same was sent to the petitioners. They entered appearance through the
same counsel. The Court amin fixed the value of the property at Rs.7,00,000/-
(Rupees Seven Lakhs only). The proclamation of the sale was served on the
petitioners and property was sold as per the order of the Executing Court.
After auction purchase by 2nd respondent, the petitioners filed E.A.No.56 of
2015 in E.P.No.55 of 2013 in O.S.No.41 of 2012, contending to set aside the
auction held on 23.01.2015 and to fix the auction price at Rs.13,00,000/-
(Rupees Thirteen Lakhs only). According to petitioners, the value of the
property is more than Rs.13,00,000/- and Court fixed low value of
Rs.7,00,000/-. The 2nd respondent by offering Rs.500/- (Rupees Five Hundred
only) more than upset price, purchased the property. According to petitioners,
45 days notice was not given to them before sale after serving notice of sale
and prayed for setting aside the sale and fix the upset price of Rs.13,00,000/-.
The respondents 1 & 2 filed separate counter affidavits and contended that
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the Court amin fixed the correct value and the petitioners have not filed any
document to show that the value of the property is worth more than
Rs.13,00,000/-. The petitioners received sale notice on 23.07.2014 itself and
prayed for dismissal of E.A. filed by the petitioners.
3.The learned Judge considering the materials on record, dismissed the
E.A.No.56 of 2015.
4.Against the said order of dismissal dated 28.08.2015, the petitioners
filed A.S.No.30 of 2016 on the file of the II Additional District Court, Erode.
5.Before the Appellate Court, the 1st respondent and 2nd respondent
filed separate written arguments. The learned First Appellate Judge
considering the order of the learned Judge passed in E.A., held that the
petitioners have not produced any material to substantiate their case that
property is worth more than Rs.13,00,000/- and held that Executing Court has
followed the correct procedure by adjourning the E.P. by 60 days after
auction sale. On these findings, the appeal filed by the petitioners was
dismissed by the Appellate Court.
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C.R.P.(NPD).No.3590 of 2016
6.Against the said judgment and decree dated 19.07.2016 made in
A.S.No.30 of 2016, the petitioners have come out with the present Civil
Revision Petition.
7.The learned counsel appearing for the petitioners contended that the
learned Judge erred in ordering sale of entire 41 cents of property worth
Rs.13,00,000/- for the realisation of decretal amount to the tune of
Rs.2,58,912/-, when the Court amin has fixed the value of the property at
Rs.7,00,000/-, which is more than decretal amount and therefore, the sale
cannot be allowed beyond decretal amount. The Court can bring only a
portion of the property to satisfy the decretal amount as per mandatory
provisions of Order XXI Rule 64 & 66 of C.P.C. In view of the irregularities
and illegalities, the First Appellate Judge ought to have set aside the sale
instead of dismissing the appeal. In support of his contention, the learned
counsel relied on the following judgements of the Hon'ble Apex Court and
prayed for allowing the Civil Revision Petition.
(i)A Division Bench judgment of the Hon'ble Apex Court reported in
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C.R.P.(NPD).No.3590 of 2016
1989 Supp (2) SCC 693, (Ambati Narasayya Vs. M.Subba Rao and
another), wherein, the Hon'ble Apex Court at paragraph Nos.7 & 9, has held
as follows:
“...7.It is of importance to note from this
provision that 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, in our
opinion, is not just a discretion, but an obligation
imposed on the Court. Care must be taken to put only
such portion of the property to sale the consideration
of which is sufficient to meet the claim in the execution
petition. The sale held without examining this aspect
and not in conformity with this requirement would be
illegal and without jurisdiction.
9.We may again hark back to the case of the
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appellant. The amount claimed in the execution
petition was about Rs.2,400. To realize that amount
the land measuring 10 acres was sold for Rs.17,000.
The appellate court has stated that the land being one,
could not have been divided. Shri Ganesh, learned
counsel for the respondent sought to justify that view.
But we find it difficult to appreciate that reason. It
seems to be against common sense. 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 blind fold 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. We cannot,
therefore, sustain the impugned sale. It must be set
aside being in contravention of the provisions of Rule
64, Order XXI CPC.”
(ii)A Division Bench judgment of the Hon'ble Apex Court reported in
(2005) 10 SCC 235, [S.Mariyappa (Dead) by LRS. and others Vs. Siddappa
and another], wherein, the Hon'ble Apex Court at paragraph Nos.2 & 3, has
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C.R.P.(NPD).No.3590 of 2016
held as follows:
“...2.In our view, the High Court has rightly not
accepted all the other objections which had been filed
by the Appellants. However, one objection needed
serious consideration was that before selling property,
the Executing Court had not considered whether sale
of only a part of the property would be sufficient to
meet the decretal debt of approximately Rs. 8000. The
property sold is one acre of agricultural land. It
appears to have been sold off for a paltry sum of Rs.
1,500 plus a prior mortgage debt of Rs. 7,000. We had
called for the proceedings of Executing Court and
have gone through the same. We find that, at no stage,
the Executing Court considered whether a sale of only
a part of the property would be sufficient to meet the
decretal debt.
3.In the case of Desh Bandhu Gupta v. N.L.
Anand & Rajinder Singh, , it has been held by this
Court as follows:- (SCC pp. 146-47 & 150, paras 14 &
17)
"14. Proviso to Sub-rule (4) of
Rule 17 of Order 21 provides the
procedure to receive the application for
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C.R.P.(NPD).No.3590 of 2016
execution of the decree. In the case of a
decree for payment of money, the value
of the property attached shall, as nearly
as may be, correspondent with the
amount due under the decree. Rule 64 of
Order 21 charges the Executing Court
that it may order attaching of any
property to the extent that "such portion
thereof as may seen necessary to satisfy
the decree would be sold". It is also
enjoined under Sub-rule (2)(a) of Rule
66 of Order 21 that where a part of the
property would be sufficient to satisfy the
decree the same be sold by public
auction. Form 27 of appendix E of the
schedule also directs the court
auctioneer to sell so much of the said
property as shall realise the sum in the
said decree and costs. The Code,
therefore, has taken special care
charging the duty on the Executing
Court and it has a salutary duty and a
legislative mandate to apply its mind
before setting the terms of proclamation
and satisfy that if part of such property
as seems necessary to satisfy the decree
should be sold if the sale proceeds or
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C.R.P.(NPD).No.3590 of 2016
portion thereof is sufficient to payment to
the decree-holder or the person entitled
under the decree to receive the amount
and so much of that property alone
should be ordered to be sold in
execution. In Ambati Narasayya v. M.
Subba Rao, this Court held that it is the
duty cast upon the court under Order 21
Rule 64 to sell only such property or a
portion thereof as may be necessary to
satisfy the decree. It is a mandate of the
legislature which cannot be ignored.
Therein for execution of a decree of a
sum of Rs. 2,000 and costs, the
appellant's 10 acres land was brought to
sale which was purchased for a sum of
Rs. 17,000 subject to discharge of a
prior mortgage of Rs. 2,000. This Court
held that without the court's examining
whether a portion of the property could
be sold, the sale held was not in
conformity with the requirement of
Order 21 Rule 64 and it was held to be
illegal and without jurisdiction. The sale
was set aside and the court was directed
to put the judgment-debtor in possession
of the land and to refund the same
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C.R.P.(NPD).No.3590 of 2016
amount to the auction-purchaser.
Further direction was given to execute
the decree in accordance with law. In
Mangal Prasad v. Krishna Kumar
Maheshwari a shop was sold to realise a
decree debt of about Rs. 29,000 and the
sale price at the auction was Rs. One
lakh and odd. This Court finding that it
is excessive execution, set aside the sale
and directed return of the same amount
to the auction-purchaser with interest @
12%. In Takaseela Pedda Subba Reddy
v. Pujari Padmavathamma, to recover
the decree debt in two decrees, the
properties situated in two different
villages were brought to sale. In the first
instance the property in 'D' village
fatched a sum of Rs. 16,880, which was
sufficient to satisfy the decretal amount.
The property in 'G' village was also sold
which fetched a sum of Rs. 12,000. This
Court set aside the sale of 'G' village.
Admittedly the side in sale is to the
extent of 550 sq. yards, situated in a
commercial area around which the
petroleum installations are established.
Though, as contended by Shri Madhava
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C.R.P.(NPD).No.3590 of 2016
Reddy, that there may be building
regulation for division of the property
into portions, but the court made no
attempt to sell a portion of the property,
may be 100 yards or 150 yards out of it,
or whether undivided portion thereof
would have satisfied the decree debt. It
could be legitimately concluded that the
court did not apply its mind at all to this
aspect as well.
17. Under Section 47 all
questions relating to execution,
discharge or satisfaction of the decree
should be determined by the Executing
Court alone. The pre-sale illegalities
committed in the execution are
amendable to the remedy under Section
47. Post-sale illegalities or irregularities
causing substantial injury to the
judgment-debtor are covered under
Order 21, Rule 90. Sub-rule (1) thereof
covers the field of material irregularities
or fraud in publicity or conducting the
sale. Sub-rule (2) enjoins proof thereof
and the court should find that by reason
thereof the applicant sustained
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substantial injury. The total absence of
drawing up of the proclamation of sale
and settlement of its term by judicial
application of mind renders the sale a
nullity being void, it is covered by
Section 47. The non-application of mind
whether sale of a part of the property
would satisfy the decree debt is a
material irregularity doing substantial
injury to the appellant attracting Order
21, Rule 90. In either case the sale is a
liable to be set aside. It is true that there
is distinction between mere irregularity
and material irregularities and the sale
is not liable to be set aside on proof of
mere irregularity. It must be material
irregularity and the court must be
satisfied that on account thereof
substantial injury was sustained by the
appellant. The sale of 550 sq. yards for
recovery of a paltry sum of Rs. 7,780.83,
without selling a portion thereof, cause
substantial injury to the appellant."
8.Though the 1st respondent entered appearance through counsel, there
is no representation for him.
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C.R.P.(NPD).No.3590 of 2016
9.Pending Civil Revision Petition, the 2nd respondent died on
11.12.2019 and the respondents 3 to 5 were brought on record as the legal
heirs of the 2nd respondent as per the order of this Court dated 16.09.2021
made in C.M.P.No.13198 & 13200 of 2021 in C.R.P.(NPD).No.3590 of 2016.
10.The learned counsel appearing for the respondents 3 to 5 submitted
that even though notice was served on the petitioners, they did not participate
in settling the proclamation of sale. They have also not furnished any material
to show that the value of the property is more than Rs.13,00,000/-. The Court
taking into consideration the value of the property at Rs.7,00,000/- as fixed
by Court amin, fixed the upset price at Rs.7,00,000/-. The property sought to
be sold is 41 cents of agricultural land and it is not capable of dividing into
several portions. The learned Judge considered the same and ordered sale of
the entire property. The 2nd respondent participated in the public auction and
his bid of Rs.7,00,500/- was accepted and he deposited the entire bid amount
and there is no violation of provisions of Order XXI Rule 64 & 66 of C.P.C.
in conducting the public auction. The petitioners having failed to participate
in settling the proclamation of sale and having failed to state that the portion
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C.R.P.(NPD).No.3590 of 2016
of the property is sufficient to realise the decretal amount, cannot raise the
said issue for the first time in the Civil Revision Petition and prayed for
dismissal of the Civil Revision Petition.
11.Heard the learned counsel appearing for the petitioners as well as
the learned counsel appearing for the respondents 3 to 5 and perused the
entire materials on record.
12.From the materials on record, it is seen that the 1st respondent filed
suit for recovery of money based on promissory note against the petitioners.
After contest, the suit was decreed by the judgment and decree dated
24.07.2013. The 1st respondent filed E.P.No.55 of 2013 for attachment and
sale of the property mentioned in the E.P. belonging to petitioners. The E.P.
Court issued notice to the petitioners for attachment of the properties
belonging to the petitioners. The petitioners did not file any counter objecting
the said attachment. Similarly, the petitioners did not participate at the time of
proclamation of sale and also did not file any materials to show that the value
of the property is worth Rs.13,00,000/-. In view of the failure on the part of
the petitioners to participate in the proclamation of sale and not producing
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C.R.P.(NPD).No.3590 of 2016
any material to show the value of property, it is not open to the petitioners to
challenge the sale on the ground that value of property fixed is low and
prayed for fixing value of the property at Rs.13,00,000/-.
13.At the same time, the contention of the learned counsel appearing
for the petitioners is that even when the value of the property is fixed at
Rs.7,00,000/-, the Court erred in ordering sale of entire 41 cents as the
decretal amount is only Rs.2,58,912/-. The E.P. filed is only for the decretal
amount of Rs.2,58,912/- and cost of Rs.20,079/-. The Court, as per Order
XXI Rule 66, ought to have ordered sale of the portion of the property, which
will be sufficient for realisation of the amount claimed in the E.P. has
considerable force. The judgements relied on by the learned counsel
appearing for the petitioners are squarely applicable to the facts of the present
case. The learned Judge has failed to comply the mandatory provision of
Order XXI Rule 64 & 66 2(A) of C.P.C., which reads as follows:
“Rule 64 Order XXI of Code of Civil Procedure 1908 : Power to
order property attached to be sold and proceeds to be paid to person
entitled:-
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C.R.P.(NPD).No.3590 of 2016
Any Court executing a decree may order that any property attached by
it and liable to sale, or such portion thereof as may see necessary to satisfy
the decree, shall he 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.
Rule 66 Order XXI of Code of Civil Procedure 1908 : Proclamation
of sales by public auction":-
2(a) the property to be sold or, where a part of the property would be
sufficient to satisfy the decree, such part;”
As per this Rule, Court can order sale of entire property or portion of
the property, which will be sufficient for realisation of the amount claimed in
the E.P. In the present case, the property is 41 cents agricultural punjai land
and the learned Judge ought to have considered the fact that sale of portion of
41 cents will be sufficient to satisfy the amount claimed in the E.P.
14.The Court amin has fixed the value of the property at Rs.7,00,000/-
and the same was accepted by the learned Judge. Having accepted the value
of the property at Rs.7,00,000/-, the learned Judge ought to have held that
sale of portion of the property will be sufficient to satisfy the amount claimed
in the E.P.
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C.R.P.(NPD).No.3590 of 2016
15.The learned Judge committed irregularity in ordering sale of the
entire 41 cents. For the above reason, the order of the learned Judge passed in
E.A.No.56 of 2015 and the order passed by the Appellate Court in A.S.No.30
of 2016, confirming the order passed in E.A.No.56 of 2015 are liable to be set
aside and hence, they are hereby set aside. The learned Judge is directed to
take the E.P. on file after giving opportunity to the parties and order sale of
sufficient portion of the suit property to realise the decretal amount as
claimed in the E.P.
16.With the above directions, this Civil Revision Petition is allowed.
No costs.
04.10.2021
krk
Index : Yes / No
Internet : Yes / No
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C.R.P.(NPD).No.3590 of 2016
To
1.The learned II Additional District Judge,
Erode .
2.The learned Subordinate Judge,
Perundurai.
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C.R.P.(NPD).No.3590 of 2016
V.M.VELUMANI, J.
krk
C.R.P.(NPD).No.3590 of 2016
04.10.2021
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