IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY FIRST DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.4916 OF 2009 Between: Pothula Venkata Ramnamma .....PETITIONER AND Madaka Annapoorna and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.4916 OF 2009 ORDER: This Civil Revision Petition, under Article 227 of the Constitution of India, is directed against the order, dated 30.09.2009, in E.A.No.117 of 2009 in E.P.No.22 of 2008 in O.S.No.23 of 2005, on the file of the Senior Civil Judge, Chodavaram, whereunder and whereby, the petition filed by the petitioner/third party, to grant stay of all further proceedings including the sale of the petition schedule land till the disposal of the claim petition, was dismissed on the ground that pending adjudication of the claim petition, the sale can proceed and the sale shall be subject to the result of the claim petition filed by the petitioner herein. 2. Petitioner herein is the third party, respondent No.1 herein is the decree holder and the other respondents are judgment debtors in the Execution Petition. 3 . Learned counsel for the petitioner contended that eight mortgaged items were brought for sale; that sale proceeds of item Nos.6 to 8 are enough to satisfy the decree, as per the valuation given by the Amin and hence, he prays to stay the sale of item Nos.1 to 5, which the petitioner purchased under a registered sale deed after mortgage. 3. On the other hand, learned counsel for respondent No.1 contended that the registered sale deed is not filed into the Court to show that the petitioner has got title in respect of item Nos.1 to 5 and therefore, the impugned order passed by the executing Court needs no interference by this Court and hence, he prays to dismiss the revision petition. 4. Order XXI Rule 64 of the Code of Civil Procedure, 1908, (for short, “C.P.C.”), reads as follows: “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.” The above provision is mandatory where the properties of the judgment debtor consist of several items and such portion of property thereof as may be necessary to satisfy the decree, shall be sold. Basing on the evidence available with regard to the value of the property, it is the imperative duty of the executing Court to bring such of the items of the schedule property as may be necessary to satisfy the decree for sale, so as to discharge the decreetal amount, but not all the items of the properties. 5. In support of the case of the petitioner, learned counsel for the petitioner placed reliance on a decision of the Honourable Supreme Court in Balakrishnan v. Malaiyandi Konar[1], wherein it is held thus: “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 ((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 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 this 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. Mariyappa v. Siddappa ((2005) 10 SCC 235).” So, from the above decision, it is clear that in execution of a decree only such of the properties, which will satisfy the decreetal amount, alone be sold in the execution proceedings. Therefore, whether the contention of the learned counsel for the petitioner that item Nos.6 to 8, if put to auction, would satisfy the decreetal amount, is true or not, has to be decided by the executing Court. Hence, the impugned order is liable to be set aside. 6. Accordingly, the Civil Revision Petition is allowed setting aside the impugned order, dated 30.09.2009, in E.A.No.117 of 2009 in E.P.No.22 of 2008, on the file of the Senior Civil Judge, Chodavaram, and remanding the matter to the executing Court. The executing Court is directed to consider the Execution Petition in terms of Order XXI Rule 64 C.P.C., so as to bring such of those properties to sale, which if sold would satisfy the decree. There shall be no order as to costs. _______________ K.C. BHANU, J February 21, 2011 MD THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.4916 OF 2009 February 21, 2011 [1] (2006) 3 SCC 49