Madras High Court
T. Govindarajan, T. Rajagopalan, R. ... vs T. Soundarajan on 3 February, 2007
Equivalent citations: (2007)2MLJ901
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. This Revision Petition is directed against the Order made in E.P. No. 27/2005 in O.S. No. 20/2004, ordering attachment of Petition mentioned property.
2. In brief background facts are as follows:
Petitioners and Respondent are brothers. Respondent filed partition suit in O.S. No. 109/1993 before Sub Court, Nagapattinam, which ended in compromise. Pursuant to the compromise, parties have entered into a Vardamanam dated 02.12.1996, as per which, Respondent is to be paid Rs. 6,00,000/- in lieu of his share. Since the amount of Rs. 6,00,000/- was not paid for executing the terms of Vardamanam, Respondent filed O.S. No. 487/2000 before Sub Court, Thiruvarur, which was decreed on 23.11.2004.
3. As against the Judgment and Decree in O.S. No. 20/2004, Petitioners have filed A.S. No. 294/2005 before the High Court. In the appeal, the High Court has granted interim stay on condition that Judgment-Debtors should deposit a sum of Rs. 3,00,000/- to the credit of O.S. No. 20/2004 on the file of District Judge, Nagapattinam on or before 13.06.2005. That conditional Order was not complied with. To execute the Decree, Respondent filed E.P. No. 27/2005. In the Execution Petition, Execution Court - District Court, Nagapattinam has ordered attachment of property - 452/840 share. Petition mentioned property is situated at Block No. 43, Municipal Ward No. III, Depo Road, Mannargudi Town. Judgment-Debtors challenge the Order of attachment in this Revision Petition.
4. Assailing the impugned Order, the learned Counsel for the Petitioners submitted that when appeal is pending, Court need not proceed with the sale and under Order 41, Rule 6 CPC, the Execution Court may obtain security for due performance of the Decree. It was further submitted that the entire vast extent of property cannot be sold and as per Order 21 Rule 64 CPC, only such portion to satisfy the Decree shall be sold and Order of attachment of entire extent of property is inadmissible.
5. Supporting the Order of attachment, learned Senior Counsel Mr. Krishnaswamy has submitted that to pay the Decree amount, only 452/840 share has been ordered to be sold and when the share of the individuals is not identified, the Petitioners cannot raise the plea of excess execution. It was further submitted that Petitioners having not complied with the conditional Order passed by the High Court, cannot seek stay of the proceedings.
6. Admittedly, appeal A.S. No. 294/2005 is pending in the High Court. Under Order 41 Rule 6(1) CPC, the Court which passed the Decree may call upon to furnish security, for the due performance of any Decree, which may be passed in the appeal. Laying emphasis upon Order 41 Rule 6(2) CPC, the learned Counsel for the Petitioners has contended that when appeal is pending, Execution Court is bound to stay sale, notwithstanding the fact that the High Court had granted interim Order and that has been vacated due to non-compliance. Placing reliance upon [Laxman Omana Muchandi v. Ramachandra Omana Muchandi], it was further contended that it was the duty of the Execution Court to call for furnishing of security and stay sale which had been ordered to be held. In the said decision, the Court has held as follows:
14. The correct view which in my opinion we should take is that once there is an appeal from the Decree and an Order is made for the sale of immovable property in execution of that Decree, the Court which has directed the sale is without any option but to Order the stay of the sale if the Judgment-Debtor asks for it. The only area in which the Court exercises its discretion is in the matter of the conditions which it may impose subject to which the sale could be stayed. Although the power exercisable in that area is plenary and full, there is no such power to refuse to stay the sale.
With due respect, I am unable to agree with the above observation. The above observation appears to be in contradiction to Order 41 Rule 5 CPC. Order 41, Rule 5 CPC stipulates "...appeal shall not operate as a stay of proceedings under a Decree or Order appealed from except so far as the Appellate Court may Order...be stayed...." Order 41. Rule 5 CPC clearly lays down that mere filing of the appeal does not by itself operate as stay of execution proceedings.
7. Placing reliance upon the above decision, cited supra, the learned Counsel for the Petitioners further contended that power of execution Court under Order 41 Rule 6(2) CPC to stay sale of attached property is not subject to power of Appellate Court under Rule 5(1) and therefore, even if Appellate Court/High Court declined to stay execution, or vacated the execution, Execution Court itself can stay sale under Order 41 Rule 6(2) CPC where conditions are otherwise satisfied. For more than one reason this contention does not merit acceptance. Order 41 Rule 6 CPC is sought to be invoked for the first time before only this revisional Court. Without filing any application under Order 41 Rule 6(2) CPC before the Execution Court, Judgment-Debtors cannot contend that Execution Court ought to have stayed the sale under Order 41 Rule 6(2) CPC.
8. Under Order 41 Rule 6(2) CPC, a Court passing the Decree has full power to stay sale on furnishing security. But calling for furnishing of security is on the application of either party and upon satisfaction of Executing Court. In the present case, the amount of Rs. 6,00,000/- was payable pursuant to Vardamanam and Compromise Decree. In O.S. No. 109/1993, Judgment-Debtors have not complied with the conditional Order of deposit of Rs. 3,00,000/-. In fact, when the Revision Petition came up before this Court, this Court has orally directed the Judgment-Debtors to pay 50% of the Decree amount, which was not complied with. Without complying with the condition of deposit of amount directed by the Courts, Judgment-Debtors are not entitled to invoke Order 41 Rule 6(2) CPC.
9. The main objection raised is that the Execution Court erred in bringing the entire property to sale and has not applied its mind to the portion which is necessary to satisfy the Decree. The Decree amount and the subsequent interest and cost is around Rs. 9.83 lakhs. For realising the amount, 452/840 share in the following items of properties, along with rice mill and godown and macheneries thereof are sought to be attached.
Town Survey Number Square Feet
1.2716 850
2.2717-1 6857
3.2717-2 6498
4.2718-1 10137
5.2718-1 13620
6.2718-3 3485
7.2719 38045
8.2720 31641
9.2721 4064
10.2737 3406
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Total 1,18,603
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10. Court Amin has tested the value of the above properties. It is gatherable from the records that the value of the property is Rs. 83,02,210/-. Value of 452/840 share is more than Rs. 42,00,000/-. Amount claimed in the execution Petition is Rs. 9,83,000/-. For realizing the short amount of Rs. 9,83,000/-, entire properties worth more than Rs. 42,00,000/- need not be brought for sale.
11. Under Order 21 Rule 64 CPC, only such portion of the property as would satisfy the Decree amount should be sold. Order 21 Rule 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 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 Order 21 Rule 64 CPC would be illegal and without jurisdiction, in [Balakrishnan v. 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 v. Pujari Padmavathamma ]. 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 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 v. 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 v. Siddappa .
10. In S.S. Dayananda v. K.S. Nagesh Rao it was held that the procedural compliance with Order 21 Rule 64 of the Code is a mandatory requirement. This was also the view expressed in Desh Bandhu gupta v. N.L. Anand .
13. As noted earlier, there as many as ten items of properties with rice mill, godown and machineries thereon, with vast extent of 1,18,603 sq.ft. which is nearly 50 grounds. In view of the Decree amount, few items of property would be sufficient to satisfy the Decree. Though the parties are entitled to 452/840 share, only those items or portion thereof, as may be necessary to satisfy the Decree alone, could be brought for sale. This mandatory procedural requirement of Order 21 Rule 64 CPC has not been complied with by the Execution Court.
14. The Execution Court ought to have enquired into the matter as to which items would be sufficient to satisfy the Decree. In every case where the property has been attached and is sought to be sold, in order to find out as to which portion of the property would be sufficient to satisfy the Decree, the execution Court has a duty cast upon it to hear the Judgment-Debtor, so also the Decree-Holder and Order sale of only such property or a portion thereof necessary to satisfy the Decree. As per the decision of the Supreme Court in [Ambati Narasayya v. M. Subba Rao], a duty is cast upon the Court to sell only such property or portion thereof as is necessary to satisfy the Decree. The impugned Order is vitiated for non-compliance with Order 21 Rule 64 CPC and cannot be sustained.
15. The Order dated 10.04.2006 passed in E.P. No. 27/2005 in O.S. No. 20/2004 on the file of the District Court, Nagapattinam, is set aside and this Revision Petition is allowed. No costs. Consequently, M.P. No. 2/2007 is closed.
16. The Executing Court/District Court, Nagapattinam is directed to comply with the mandatory requirement of Order 21 Rule 64 CPC. The Execution Court is directed to hear the Judgment-Debtor, as also the Decree-Holder and bring only those items of properties necessary to satisfy the Decree and issue fresh proclamation and proceed with the matter in accordance with law.