Andhra HC (Pre-Telangana)
Jagati Thimmaraju vs Uppuluri Brahmanna on 19 March, 1998
Equivalent citations: 1998(3)ALD404, 1998(3)ALT266
Author: Syed Saadatulla Hussaini
Bench: Syed Saadatulla Hussaini
JUDGMENT
1. Heard both the Counsel.
2. This C.R.P. arises on the execution side on petitioner filing E.A.No.467/90 before the executing Court. It is stated that the petitioner has suffered an ex parte decree in a sum of Rs.7,877.20 ps. on the file of the I Additional District Munsif Court, Kovvur, dated 29-3-1979. On 15-10-1985, the respondent-decree-holder filed E.P.372/85 for sale of the Judgment debtor's property for recovery of a sum of Rs. 11,878.15 ps., decretal amount plus other charges. On 16-10-1985, Ac.2.15 cents of agricultural land owned by the petitioner was attached at Purushottampalli Village, D. M.uppavaram Mandal. The petitioner-judgment-debtor was served with the notice of attachment on 16-2-1986. Later the petitioner's Advocate filed Vakalat, but no counter was filed. On 11-7-1986 sale papers and encumbrance certificate were filed, and on 17-7-1986 sale papers and encumbrance certificates were checked. Court ordered notice to the petitioner-judgment-debtor and when notice to the petitioner was returned unserved, the executing Court on 11-9-1986 directed fresh notice through Court and registered post with acknowledgment due. On 25-2-1987 Court directed to publish the notice, and on 2-3-1987 notice was published in Radha Krishna Patrika, Bhimavaram. On 25-3-1987 proof of publication was filed and when the petitioner-judgment-debtor was absent, the Court set him ex parte. On 2-4-1987 proclamation of sale was settled and the sale of the property was effected on 24-6-1987.
3. The petitioner filed an application under Section 47 read with 151 C.P.C. praying to set aside the sale dated 24-6-1987, as it is not in conformity with Order 21, Rule 64 and the same is void and without jurisdiction.
4. The same was resisted by the respondent and on hearing both the Counsel, the executing Court dismissed the said application as the same is not sustainable in law.
5. Mr. M.V.S. Suresh Kumar, learned Counsel for the petitioner vehemently submits that the executing Court erred in dismissing the application of the petitioner on the ground that the Court has committed an error in law. Relying on Order 21, Rule 64 C.P.C. He submits that the Court should not have allowed the entire property (Ac.2.25 cents) for sale, a part of the property or even less than one acre should have satisfied the decretal amount and as such, the sale is void and without jurisdiction. He relies on the Apex Court Judgment of two Judges in Ambati Narasayya v. M. Subba Rao, . While dealing with Order 21, Rule 64 C.P.C. their Lordships have held that in an auction sale, the entire property should not be sold, but Such portion as would satisfy the decree should be sold and this is obligatory on Court and not just discretion, which is amandate of legislation which cannot be ignored. In para 7 of the judgment their Lordships have held as under :
"It is of importance to notice 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 confirmity with this requirement would be illegal and without jurisdiction."
6. Relying the above judgment, Mr. M.V.S. Suresh Kumar, learned Counsel for the petitioner submits that the order of the Court below should be set aside and the lower Court be directed to sell a portion of property about one acre to satisfy the decretal amount.
7. Mr. N.V. Suryanrayana Murthy, learned Counsel for the respondent resists the contention of the petitioner and submits that there is no illegality or irregularity in the order passed by the Court below in putting the entire attached property of the petitioner for sale for realisation of the decretal amount. He reiterates the proceedings of the Court, submitted by the learned Counsel for the petitioner, that "from the date of the filing of the execution petition and till the date of the sale of the attached property" and submits that the judgment of the Apex Court is not applicable to the facts of the case, for the above judgment has been rendered before the amendment of the C.P.C., which came into effect from 1-2-1977, He relies on Order 21 Rule 66(1) and (2) C.P.C., which is to the following effect:
Proclamation of sales by public auction.
66(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.
(2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible-
(a) the property to be sold (or, where a part of the property would be sufficient to satisfy the decree, such part);
(b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;
(c) any incumbrance to which the property is liable;
(d) the amount for the recovery of which the sale is ordered; and
(e) every other thing which the Court considers material for a purchaser to know in order to Judge of the nature and value of the property;
Provided that where notice of the date for settling the terms of the proclamation has been given to the judgment-debtor by means of an order under Rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs:
Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given by cither or both of the parties.)
8. Order 21, Rule 66(2)(a) has been amended as "or where a part of the property would be sufficient to satisfy the decree, such part" and as per the proceedings of the Court, the petitioner had the opportunity to raise objection when notice of attachment was served and on subsequent date, the statement of proclamation of sale was ordered in the E.P. but, for the reasons best known to him, the petitioner's Advocate stated that he is not riling any counter or raised objections. In such circumstances the sale of the entire property was settled, and the property was put to sale on 24-6-1987.
9. Mr, N.V. Suryanarayana Murthy submits that the Apex Court while holding that when the decretal amount could be met by the sale of a portion of the property, the entire property should not be sold and it is the obligation of the Court to put the judgment-debtor's property for sale, for it was not brought to the notice of the learned Judges the provisions of Order 21, Rule 90 C.P.C. where it is open for the petitioner to raise objection for sale of the property with regard to the illegality or irregularity or fraud. Having not done so, the petitioner cannot press in aid the said judgment of the Apex Court. Next he contends that petitioner cannot avail the benefit of Section 47 of C.P.C., which is in general when a specific provision is provided under Order 21, Rule 90 C.P.C.
10. He relies on a Division Bench Judgment of Kerala High Court in K.P.M. Saheed v. Aluminium Fabricating Co., wherein their Lordships, in para 25 of the judgment, have held as under:
"It is the material irregularity or fraud which affects the method and manner of publishing the proclamation and the actual conduct of the sale that clothes the Court with a jurisdiction to set aside the sale under Order 21 Rule 90 C.P.C. where Order 21 Rule 90 applies, Section 47 is not available."
11. Apart from this, he also states that the petitioner has preferred this application at the fag end of three years i.e., 23-6-1990, whereas the sale of the property was effected on 24-6-1987. To file an application raising objections to sale of the property, Article 127 of the Limitation Act is applicable. Article 127 of the Limitation Act, 1963 reads as under:
Description of suits Period of limitation Time from which period begins to run To set aside in execution of a decree, including any such application by ajudgment-debtor.
Sixty Days The date of sale.
12. Under this Article, the petitioner has to raise any objection with regard to the sale within sixty days from the date of the sale, but in the instant case, the petitioner has not raised the objections within the stipulated time, as such, ihe petition filed by the petitioner itself is barred by limitation.
13. Next, Mr. N.V. Suryanarayana Murthy, learned Counsel for the respondent relies on another three Judge-Bench Judgment of Apex Court in Dhirendra Nath v. Sudhir Chandra, wherein their Lordships have considered the provisions of Order 21, Rule 90 C.P.C. and also the J3engal Money Lenders Act (10 of 1940) Section 35, where it was contended that whether Section 35 of the Act is mandatory or directory the sale held in violation of the said provision is only illegal but not a nullity and therefore, it can be set aside only in the manner and the reasons prescribed in Order 21, Rule 90 of the Code of Civil Procedure and further when the respondents did not attend at the drawing up of the proclamation of sale, the sale cannot be set aside at their instance. Their Lordships in para 5 of the judgment, have considered the effect of Section 35 of Bengal Money Lenders Act (10 of 1940), Order 21 Rule 64 and Order 21 Rule 66. But, ultimately their Lordships agreed with the views expressed by the Division Bench of the Calcutta High Court consisting of Akram and Chakravarti, JJ., in Mahindra Chandra v. Jagadish Chandra, 1950 Cal. WN 266
14. In view of the above contextual facts of the case and following the ratio decided by the Larger Bench in Dhirendra Nath Gorai v. Sudhir Chandra (supra) I hold that the judgment in Ambali Narasayya v. M. Subba Rao (supra) consisting of two Judge-Bench no longer holds good for the Larger Bench (Three Judge-Bench) Judgment governs the field, though earlier in time and also that the petition is barred by limitation under Article 127 of the Limitation Act, 1963.
15. There are no merits in the C.R.P. The C.R.P. is accordingly dismissed. No costs.