THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P.NOs. 860 & 861 of 2006 Date of order: 27.8.2010 Between: CRP NO. 860 OF 2006 V. Veera Reddy …Petitioner and Kuruva Pullanna @ Pedda Pullanna ..Respondent and CRP NO. 861 OF 2006 V. Veera Reddy …Petitioner and K. Sayamma ..Respondent THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P.NOs. 860 & 861 of 2006 COMMON ORDER: Both these revision petitions are preferred by the decree holder who is also an auction purchaser and under the impugned order of the lower appellate Court, the sale of EP schedule properties in favour of the petitioner by the executing court was set aside. The respondent in CRP No. 860 of 2006 is the son of the respondent in CRP No. 861 of 2006 and they are judgment debtors. The petitioner herein filed two suits vide O.S.Nos. 222 and 223 of 1999 for recovery of money against each of the respondents herein and obtained ex parte decrees on 4.10.1999. Earlier pending the suit, the petitioner obtained an interim order of attachment of EP schedule properties and the said attachment order was made absolute after decreeing the suits. The petitioner filed E.P.Nos. 138 and 139 of 1999 in OS Nos. 222 and 223 of 1999 respectively for execution of the decrees. Respective EP schedule properties were sold in execution of the said decrees by the executing court on 21.12.2000. Before confirmation of sale, the respondent in CRP No. 861 of 2006 filed an application vide EA No. 67 of 2001 to set aside the sale in EP No. 138 of 1999. Similarly the respondent in CRP No. 860 of 2006 filed an application vide EA No. 68 of 2001 to set aside the sale in EP No. 139 of 1999. Both the said applications were filed under Order 21, Rule 90 of the Civil Procedure Code and they were dismissed by the executing court by a common order dated 19.1.2005. However, on appeal, the aforesaid applications were allowed by the lower appellate court under the impugned order, dated 23.1.2006. These revision petitions are directed against the said appellate Court’s order. Sri O. Manohar Reddy, learned counsel appearing for the petitioner/decree holder has contended that there is no ground for setting aside the sale, as the respondents have failed to establish any material irregularity in the sale. He also pointed out that the respondents never appeared before the executing court and put up no objections to the settlement of sale proclamation, the valuation, the upset price fixed by the executing court and only after the sale was knocked down in favour of the petitioner and after the petitioner has deposited the balance amount, the respondents filed these applications at the last minute before confirmation of sale. He, therefore, submits that the respondents are guilty of protracting the execution proceedings and have failed to establish any irregularity, whatsoever, nor have been able to establish any substantial injury to either of them. The learned counsel has placed reliance upon several decisions of this Court as well as the Supreme Court reported in V.V. Narayan Chetty Vs. Nenla Dhanamma and another [1], S. Nooruddin Vs. Khadam Gnanoba [2], Radhy Shyam Vs. Shyam Behari Singh [3], Rajender Singh Vs. Ramdhar Singh and others [4], Sri Ram Maurya Vs. Kailash Nath and others [5], Saheb Khan Vs. Mohd. Yusufuddin and others [6], Valivety Ramakrishnaiah Vs. Totakura Rangarao [7], and Putti Kondala Rao and others Vs. Vallemanchili Sitarattamma and another [8]. The learned counsel has also placed before this Court the certified copies of various proceedings before the executing court relating to respective EPs and has refuted the specific allegation of the respondents that the decree holder was not permitted to bid at the auction and in support thereof, he has placed the certified copies of docket orders of the executing court permitting the petitioner to participate in the auction. The learned counsel, therefore, submits that there is no violation of Rule 64 or Rule 68 of Order 21 of the Civil Procedure Code and the valuation of the property was made on the basis of valuation given by the Ameen of the Court keeping in view the basic value recorded by the registering authority. The learned counsel for the respondents/judgment debtors, on the other hand, contended that the very sale ordered by the executing court is in violation of Rule 64 of Order 21 of the Civil Procedure Code as excess property of the respondents was sold in auction. He points out that the decretal amount now in EP No. 138 of 1999 is only Rs.32,841/-, whereas in EP No. 139 of 1999 it is Rs.22,354/- and the total amount in both the EPs would hardly be about Rs.56,000/- and to satisfy both the EPs, the land of Ac.5.30 cents was sold in auction. The learned counsel submits that the value of the land per acre as per the official rate recorded by the registering authority is not less than Rs.50,000/- as is evident from the transactions of the adjacent properties and the evidence of PWs 2 to 6. He also submitted that even before the executing court the respondents offered to pay the entire decretal amount, but the said offer was not accepted by the executing court because the petitioner was not willing. He points out that in paragraph-15 of the executing court’s order the offer made by the respondents was recorded and even in this Court the learned counsel for the respondents offered to pay the entire decretal amount and also to pay reasonable compensation to the decree holder for the delay. In view of the offer being made by the respondents, the revision petitions were adjourned to enable the learned counsel for the petitioner to get instructions. However, the learned counsel for the petitioner, on instructions, submits that the decree holder is not willing to accept any such offer. Therefore, I have heard the revision petitions at length and they are being disposed of by this common order. At the out set, it is to be noted that in EP No. 138 of 1999 an extent of Ac.1.30 cents of land in S.No. 566/3 was put to sale, whereas the amount recoverable in the said EP was only Rs.32841/-. Similarly in EP No. 139 of 1999 an extent of Ac.4-00 in S.No. 595 was put to sale for recovery of EP amount of Rs.22,354/-. It was noted by the lower appellate court in EP No. 138 of 1999 that according to encumbrance certificate, the property was mortgaged in favour of one Alla Hussain for Rs.42,000/- vide document bearing No. 760 of 1999, whereas the valuation accepted by the executing court was for Rs.20,000/- per acre. However, the aforesaid mortgage was not notified in the sale proclamation. Similarly in EP No. 139 of 1999 the valuation given by the Ameen of the Court was Rs.1,00,000/-, whereas the executing court has fixed the valuation at Rs.60,000/- and only Ac.2-00 out of Ac.4-00 was proposed for sale, but, in reality, according to the proceedings of executing court in EP No. 139 of 1999 dated 21.12.2000, entire land of Ac.4-00 was put to sale at the upset price of Rs.60,000/- and it was knocked down in favour of the petitioner for Rs.64,000/- being the highest value. The first and foremost aspect which the executing court is required to keep in mind is that only that much of the property be put to sale which is sufficient to satisfy the decree. Though the learned counsel for the respondents has given the figures in the respective execution petitions which are noted in the above paragraphs, the certified copies of the orders of the executing court in EP Nos. 138 and 139 of 1999 both dated 21.12.2000 would be apt to be extracted hereunder which show the manner in which the executing court has proceeded to sell the EP schedule properties, E.P.No. 139 of 1999, DATED 21.12.2000: “E.A.No. 261 of 2000 filed to permit D.Hr to participate in the auction is allowed today. He is present. 10 more bidders present. Petition schedule is a dry land. I proposed to auction Ac.2.00 of land only out of Ac.4.00 of land, which is sought for auction by D.Hr since sale price of Ac.2.00 of land only may fetch the E.P. amount. But, the participants expressed their inability to purchase a portion of the land on the ground that J.Dr., being neighbourer of the said Ac.2.00 of land will certainly give trouble and so entire Ac.4.00 of land may be auctioned. Their apprehension finds force. I, therefore, fix upset price of entire Ac.4.00 of land at Rs.60,000/-. Auction is held in open court. 6 bidders including D.Hr out of 10 bidders actually participated in the auction. It is knocked down in favour of D.Hr. for Rs.64,000/-, being the highest value. E.P. amount is Rs.24,944/-. It is given set off at the oral request of counsel of D.Hr. Poundage is paid. For depositing balance of sale consideration and value of N.J. stamps, by 4.1.2001.” E.P.No. 138 of 1999, DATED 21.12.2000: “E.A.No. 260 of 2000, filed to permit D.Hr to participate in the auction, is allowed today. He is present. 8 more persons present. I fix upset price of Ac.1.30 cents at Rs.20,000/-. Auction is held in the open court. 4 persons including D.Hr., out of 8 persons, actually participated in the auction. It is knocked down in favour of D.Hr. for Rs.23,000/-, being the highest value. E.P. amount is Rs.17,403/-. It is given set off at the oral request of counsel of D.Hr. Poundage is paid. For depositing balance of sale consideration and value of N.J. stamps, by 4.1.2001.” It would be noticed from the above orders that the executing court has permitted the decree holder to participate in the auction and conducted auction in the court and finalized the sale in the court itself. The amounts covered by the respective EPs are only Rs.24,944/- and Rs.17,403/- respectively and for satisfaction of the said decree an aggregate extent of Ac.5.30 cents was sold, which, on the face of it, appears to be excessive. It is also relevant to notice that though only Ac.2.00 was proposed to be sold as per the sale proclamation in EP No. 139 of 1999, but on the date of auction the executing court decided to put the entire Ac.4.00 to sale on the basis of apprehensions expressed by bidders and consequently the entire property of Ac.4.00 was sold. The manner in which the valuation was fixed, the manner in which the entire property was put to sale and the manner in which the auction and various other proceedings were taken, all, on the same day, i.e., 21.12.2000 clearly show that the executing court has not kept in mind that while selling the property of the judgment debtors, it must exercise due care to ensure that only that much of the property which is sufficient to meet the claim in execution petition alone be sold. The words ‘necessary to satisfy the decree’ used in Order 21, Rule 64 of the Civil Procedure Code clearly mandates the executing court to sell the property of the judgment debtor only to the extent of meeting the claim in execution petition and not in excess thereof. There is neither any allegation nor any material as to indivisibility of the property and if really the sale of entire property was inevitable, in the absence of any such fnding, the executing court had only jurisdiction to sell that much of the property which would satisfy the decree. The above legal position is well settled by several decisions of the Supreme Court and a reference can be made to decisions reported in Takkaseela Padda Subba Reddy Vs. Pujari Padinavathamma [9] and Ambati Narasayya Vs. M. Subba Rao and another [10]. The above legal position was also followed by this Court in C. Ryan Babu Vs. B.K.L. Traders, Gajuwaka, Visakhapatnam and another [11]. The principles enunciated by these decisions are unexceptional and if those principles are applied to the facts of the present case, it would show that the sale in the present case is clearly vitiated on more than one ground. The learned counsel for the petitioner has cited the decisions referred to above, which, on facts of the present case, are each distinguishable and not helpful to him. The lower appellate court was also satisfied that another mandatory provision with regard to publication of sale under Rule 68 of Order 21 of the Civil Procedure Code is also violated. It is noticed that the proclamation of sale was settled on 6.12.2000 and the same was published by a Dandora as per the endorsement of the process server and another publication in Eenadu was effected on 17.12.2000 which satisfy the requirements of publication in a newspaper having wide circulation. However, 15 days’ mandatory period did not expire from the date of the said publication. While the said publication was made on 17.12.2000, the sale was actually conducted on 21.12.2000 itself. The executing court, while rejecting the applications of the respondents, has relied upon the said publication in Eenadu on 17.12.2000 to conclude that the said publication satisfied Rule 68 of Order 21 of the Civil Procedure Code. However, it has missed to notice that 15 days’ mandatory time required under Rule 68 of Order 21 of the Civil Procedure Code was not adhered to. The objections of the respondents on the ground of mis-description or sufficiency of extent of land and the valuation thereof were not considered by the executing court on the ground that the respondents were estopped on account of not objecting to the settlement of sale proclamation. The lower appellate court has, however, correctly appreciated and found that the sale in question was beyond the jurisdiction of executing court and the said sale was found to be vitiated for more than one reason. I am, therefore, not persuaded to take a different view than the one taken by the lower appellate court. Consequently these revision petitions deserve to be dismissed. This order will not preclude the petitioner-decree holder from moving the executing court for taking steps afresh in accordance with law for realization of the decretal amounts in O.S.Nos. 222 and 223 of 1999 from the respondents-judgment debtors. The offer made by the respondents before the executing court as well as before this Court, as recorded above, shall also be kept in mind by the executing court while deciding execution of the decrees afresh. With these observations, the revision petitions are dismissed. No costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 27.8.2010 KR [1] AIR 1984 ANDHRA PRADESH 159 [2] AIR 2004 ANDHRA PRADESH 495 [3] AIR 1971 SUPREME COURT 2337 [4] AIR 2001 SUPREME COURT 2220 [5] AIR 2000 SUPREME COURT 3402 [6] AIR 2006 SUPREME COURT 1871 [7] AIR 1986 SUPREME COURT 2099 [8] AIR 1976 SUPREME COURT 737 [9] AIR 1977 SUPREME COURT 1789 [10] AIR 1990 SUPREME COURT 119 [11] 2010 (4) ALD 349