ivil Appeal No 4195 of 1989
From the Judgment and Order dated 1621987 of the Andhra Pradesh High Court in CRP No 3750 of 1984
B Kanta Rao for the Appellant
MS Ganesh for the Respondents
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
We grant special leave and proceed to dispose of the appeal
In OS No 8211973 there was ex parte decree against the appellant for payment of Rs2000 and cost
In execution of the decree the appellant s land section No116 at Bayanguda village measuring 10 acres was brought to Court sale
His small farm house was also located in the land
In the auc tion held the respondent purchased the land for Rs 17000
The sale was subject to the prior mortgage for Rs2000 in favour of the Land mortgage Bank Jangareddigudem
On 31 May 1976 the sale was confirmed
On 26 July 1976 the appellant filed application under Order XXI Rule 90 for setting aside the sale
He impeached the auction sale broadly on three grounds namely i that he was the owner of only one acre of land and the remaining 9 acres in the said survey number belonged to his father Siddaiah ii that the land was worth about Rs70000 but it was sold for a very low price of Rs 17000 by fraudulent procedure followed by the au thorities and iii that he was not served with notice before attachment or sale
453 In support of the above allegations the appellant entered the witness box as PW 2
He has also examined four other witnesses besides producing documentary evidence marked as exhibit A 1 to A 13
The auction purchaser in turn has examined three witnesses
On appraisal of the evidence the executing court the Principal District Munsif Kovvur rejected the application of the appellant
He held that the sale was not vitiated by fraud or irregularity
The appeal against that order was dismissed by learned Subordinate Judge at Kovvur
Before the appellate court one other contention was argued on behalf of the appellant
It was contended that the executing court ought to have sold only such portion of the land as would satisfy the decretal dues and the sale of the entire 10 acres was illegal and without authority
The appellate court rejected that contention for the reason that it is a single piece of land and could not have been divided into parcels
The High Court of Andhra Pradesh also dismissed the appel lant s revision but expressed no opinion as to whether a portion of the land could have been sold to satisfy the decree
Hence this appeal
The principal question that has been highlighted before us relates to the legality of the sale of 10 acres of land without considering whether a portion of the land could have been sold to satisfy the decree
It is said that the total sum claimed in the execution was Rs239550
The relevant provision which has a bearing on the question is Rule 64 Order XXI of the Code of Civil Procedure and it reads as follows Order XXI Rule 64 Power to order property attached to be sold and proceeds to be paid to persons 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
 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 proper ty 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 454 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 re quirement would be illegal and without jurisdiction
In Takkaseela Pedda Subba Reddy vs Pujari Padmavathamma and Ors at 340 this Court after examin ing the scope of Rule 64 of Order XXI CPC has taken a simi lar view Under this provision the executing Court derives jurisdiction to sell properties at tached only to the point at which the decree is fully satisfied
The words necessary to satisfy the decree  clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation
In other words where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree no further sale should be held and the court should stop at that stage
 We may again hark back to the case of the appellant
The amount claimed in the execution petition was about Rs2400
To realize that amount the land measuring 10 acres was sold for Rs 17000
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 im pugned sale
It must be set aside being in contravention of the provisions of Rule 64 Order XXI CPC
455 In the result we allow the appeal with costs
In rever sal of the orders of the courts below we set aside the impugned sale
We direct the Executing Court first to put the appellant in possession of the land in question and then refund the sale amount to the auction purchaser if it is in deposit
The Court thereafter may proceed to execute the decree according to law and in the light of the observations made
This order shah be complied with within two months from the date of receipts of this order
PSS Appeal allowed


Summary:
The disputed property belonged to a joint Hindu family governed by Mitakshra law of which one Bhiku and his son were coparceners
Bhiku died leaving behind Parvati his widow and a son Balu
Soon after Balu too died leaving behind his widow Lilabai who gave birth to a posthumous daughter the present appellant
Sometime later Lilabai remarried
Thereupon Parvati Bhiku s surviving wife adopted Vithal the present respondent in this appeal
The appel lant Ashabai on attaining majority filed the present suit for a decree for possession of properties with mesne profits and a decree for money and challenged the power of her grand mother to adopt
The trial court upheld the adoption of the defendant as valid and dismissed the suit
The plaintiff Ashabai chal lenged the decision by an appeal
The Appellate court al lowed the appeal and passed a decree in her favour granting the reliefs claimed
Thereupon the defendants challenged the decree of the first appellate court in the High Court
The High Court ruled that a Hindu widow s power to adopt is revived the moment there is nobody to continue the line and thus the adoption of the respondent was found legal and valid and the decree in favour of the plaintiff appellant was set aside and her suit dismissed
Hence this appeal by special leave by the plaintiff
Allowing the appeal in part by decreeing the suit for half share in the suit properties with mesne profits this Court HELD There does not appear to by any scope for holding that on the remarriage of the son s widow the power of son s mother to adopt revives
467F In the instant case on the death of Balu the responsi bility for the continuance of the family line fell on his widow Lilabai by the power of adoption vesting in her and the power of Parvati to adopt was extin 465 guished permanently and is not revived even on Lilabai s remarriage
Consequently the adoption of the first defendant was invalid in the eye of law and he did not get any inter est in the suit properties
468B The properties belonged to the joint family of which Bhiku was a coparcener
On his death in 1942 his wife Par vati got under section 32 of the Hindu Women s Rights to Property Act 1937 the same interest as Bhiku had in the joint family properties
468C The interest which initially devolved on Parvati howev er was limited in nature known as the Hindu Women s estate
On passing of the Hindu Succession Act 1957 she became full owner thereof
468D Ram Chandra vs Murlidhar  Gurunath vs Kamlabai   Amrendra Mansingh vs Sanatan Singh 1933 LR 60 IA 242 Ramkrishna Ram chandra vs Shamrao Bom
526 and Bapuji vs Gangaram 1941 ILR Nagpur 178 referred to