IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No.2678 OF 2011 Date:19.08.2011 Between:- Chintham Ramudu .. Petitioner/JDR/defendant And A.Ravi Sankar .. Respondent/DHR/plaintiff ORDER: The Civil Revision Petition, under Section 115 of the Code of Civil Procedure, 1908 (for short, ‘C.P.C.’) is directed against the order, dated 03.06.2011, in E.A.No.366 of 2010 in E.P.No.45 of 2008 in O.S.No.87 of 2007 on the file of the Principal Senior Civil Judge, Nandyal, whereunder and whereby, the petition under Order XXI Rule 95 C.P.C. for delivery of possession of petition schedule property was allowed subject to result of the suit in O.S.No.182 of 2010 on the file of Principal Senior Civil Judge, Nandyal and the judgment debtor was directed to deliver the E.P. schedule property to the decree holder. 2. For better appreciation of facts, the parties hereinafter are referred to as they are arrayed in the trial Court. 3. The petitioner is the decree holder, who filed O.S.No.87 of 2007 on the file of the Principal Senior Civil Judge, Nandyal for recovery of amount due on two promissory notes and the suit was decreed in his favour. He filed E.P.No.45 of 2008 and brought the E.P. schedule property of the respondent for sale. The schedule property was sold in public auction and the petitioner participated in the auction and became an auction purchaser in the auction held on 25.03.2009. The respondent/JDR filed frivolous petitions one after another to drag on the delivery proceedings and all those petitions were dismissed. After dismissal of the petitions filed by the respondent/JDR, this Court confirmed the sale on 29.06.2010 and the petitioner paid the entire consideration and he is unable to take delivery of possession. The sale certificate was also issued in his favour and hence, the petitioner is entitled to take delivery of possession of the petition schedule property. 4. The respondent/JDR filed his counter contending that the Court auction, which was held on 25.03.2009, is void, illegal, unenforceable and not binding on the respondent. The sale certificate, dated 29.06.2010, issued by the Court is nominal, void, and unenforceable against the respondent. He is an agriculturist and residing in the schedule dwelling house with his family members and it is only one dwelling house belonging to him. The petitioner himself admitted that the respondent is an agriculturist in both suit and E.P. proceedings. Hence, the E.P. schedule property was exempted from attachment under Section 60(1)(c) C.P.C. and the schedule dwelling house cannot be attached and cannot be brought for sale by the petitioner. The respondent is having lands and hence, the petitioner is at liberty to enforce his remedy for recovery of the suit amount by brining the lands owned by the respondent for sale in Court auction, but the petitioner intentionally brought the schedule dwelling house for sale to gain wrongfully due to dispute between respondent and the petitioner in respect of rastha leading to the petitioner’s house and the schedule house belonging to the respondent. The petitioner herein and his father jointly filed O.S.No.276 of 2007 on the file of Principal Junior Civil Judge, Nandyal and the same is pending. The respondent/judgment debtor also filed O.S.No.182 of 2010 on the file of the Principal Senior Civil Judge, Nandyal for declaration that attachment and sale held on 25.03.2009 of the E.P. schedule property and the consequent confirmation of sale on 01.04.2010 are illegal and void and to set aside the sale of the schedule property. The respondent also filed I.A.No.272 of 2010 in the said suit for interim injunction restraining the petitioner from proceeding further in respect of delivery of proceedings under Order XXI Rule 95 C.P.C. The respondent deposited an amount of Rs.70,000/-, as per the orders in C.R.P.No.1354 of 2009, and he also filed E.A.No.365 of 2009 to permit him to deposit the remaining sale consideration and the said petition was dismissed after enquiry. The respondent preferred C.R.P.No.1768 of 2010 and the same was also dismissed by this Court with an observation that the petitioner is at liberty to work out his remedy. Hence, the respondent filed O.S.No.182 of 2010 as he got prima-facie case to succeed in the suit. The petitioner has no prima facie case to succeed in the said suit and prays to dismiss the petition. 5. No oral or documentary evidence was adduced on either side. 6. The trial Court allowed the petition subject to result of the suit in O.S.No.182 of 2010. Challenging the same, the present Civil Revision Petition is filed. 7. Learned counsel for the revision petitioner/JDR contended that the executing Court has no jurisdiction to bring the E.P. schedule property for sale and the entire execution proceedings are nonest in the eye of law, as the house of the petitioner/judgment debtor brought for sale is exempted from attachment under Section 60(c) C.P.C and therefore, he prays to set aside the impugned order. 8. On the other hand, learned counsel appearing for the respondent/decree holder contended that the sale of property in the execution proceedings has attained finality and in pursuance of the sale only, the present application is filed by the decree holder for delivery of the property and in ordering the application, the executing Court has not committed any illegality or irregularity so as to call for interference by this Court and hence, there are no grounds to interfere with the impugned order and prays to dismiss the petition. 9. The factual matrix is not in dispute. The respondent filed a suit for recovery of money. That was decreed and the judgment and decree with regard to recovery of money has attained finality. As the judgment debtor failed to pay that amount, decree holder filed execution proceedings, brought the house of the judgment debtor for sale and in the execution of proceedings, the property was purchased by the decree holder after obtaining permission from the executing Court, and the sale has become final, and in pursuance of the sale, the sale certificate has been issued to the decree holder. For the purpose of delivery of the property, the present application is filed, which was allowed by the trial Court. When the sale has become final and the sale certificate has been issued, the only remedy available to the judgment debtor is to deliver the property to the decree holder. Now, the contention of the learned counsel appearing for the petitioner is that the house of an agriculturist cannot be attached and brought to sale by virtue of Section 60(c) C.P.C. That plea has been taken for the first time in this Revision. No evidence of whatsoever was adduced by the petitioner to show that his principal source of livelihood is agriculture and he lives by agriculture only. The Amendment Act of 1976 has now clarified that an “agriculturist” is a person, who cultivates land personally and who depends for his livelihood mainly on the income from the agricultural lands, whether as owner, tenant, partner or agricultural labourer. It also declares that an agriculturist shall be deemed to cultivate land personally, if he cultivates land (a) by his own labour or (b) by the labour of any member of his family; or (c) by servants or labourers on wages payable in cash or in kind (not being a share in the produce) or both. In the absence of any evidence and simply because he was shown as an agriculturist in the cause title, it does not mean that he comes within the meaning of Section 60(c) C.P.C. The proceedings now under challenge are only consequential proceedings in pursuance of issuance of the sale certificate. Therefore, the impugned order needs no interference by this Court and the petition is liable to be dismissed. 10. Learned counsel for the petitioner placed reliance on a decision of this Court in Patnam Subbalakshmamma v. Sunkugari Sreenivasa Reddy and another in Civil Revision Petition No.3824 of 2010 wherein it is held as under: “It is brought to the notice of this Court that the petitioner deposited the entire E.P. amount in compliance with a condition imposed by this Court, while passing an interim order. It is no doubt true that the amount was deposited after dismissal of the appeal. Since an appeal can be filed against the order passed in the E.A., a revision filed against the order passed in the appeal, can certainly be treated as continuation of the proceedings.” The above decision has no application because the sale is under challenge in that decision because of material irregularity in conducting the sale. But in this case, the sale is not under challenge. Learned counsel for the petitioner also relied upon a decision in Sai Enterprises vs. Bhimreddy Laxmaiah and another[1] wherein at para No.9, it is held as under: “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:AIR 1977 SC 1789]. In all execution proceedings, 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 vs. M.Subba Rao)[1989 Supp (2) SCC 693]. The duty cast upon the Court to sell only such portion 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 253]. The position was also highlighted in Balakrishnan v. Malaiyandi Konar [(2006)3 SCC 49].” No doubt, the executing Court, in the first instance, has to decide to bring such extent of property for the purpose of satisfying the decree, but when the property is not divisible, the entire extent has to be brought for sale. Therefore, it is not the case of the petitioner that the property sold in execution proceedings can be divisible and separable so as to infer that part of property would satisfy the decree. Therefore, for the first time, this objection has been taken by the learned counsel for the petitioner. He also relied upon a decision of the Hon’ble Supreme Court in D.Purushotama Reddy and another vs. K.Sateesh[2] wherein it is held at Para No.18 as hereunder: “Actus curiae neminem gravabit (no person shall be prejudiced by an act of Court) is a well-known maxim. In any event, this Court in exercise of its jurisdiction under Article 136 as also under Article 142 of the Constitution of India can direct rectification of a mistake committed by the courts below.” No doubt, from the above decision, it is clear that no person shall be prejudiced by the act of Court. The question of prejudice does not arise in this case because the execution proceedings have taken place in accordance with procedure contemplated under Order XXI C.P.C. There is no material irregularity in conducting the sale or publishing the sale. When the process of sale in execution proceedings is not under challenge and sale has been conducted in accordance with the rules, and it has become final, and in pursuance thereof, the sale certificate has been issued, the question of application of that Latin maxim, as stated in decision 3 supra, does not arise in this case. Therefore, the trial Court rightly passed the consequential order of delivery of house property to the auction purchaser in pursuance of the sale certificate. Hence, there are no grounds to interfere with the impugned order and the petition is liable to be dismissed. 11. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. ______________________ JUSTICE K.C.BHANU 19th August, 2011. AMD THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No.2678 OF 2011 Date:19.08.2011 AMD [1] (2007)13 Supreme Court Cases 576 [2] (2008) 8 Supreme Court Cases 505