IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 WP(C).No. 10731 of 2009(O) -------------------------- CMA.17/2005 of ADDL.DISTRICT COURT, THRISSUR OS.2932/2000 of PRL.MUNSIFF COURT,THRISSUR (EP 1791/03) .................... PETITIONER(S): --------------- MOHANAN, AGED 46 YEARS S/O.ODATTIL KOCHUKUTTAN, EDAPALAM DESOM PEECHI VILLAGE, THRISSUR TALUK. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): --------------- RAMESH S/O.MAVELIVEETTIL THANKAPPAN LALOOR DESOM, ARANATTUKARA VILLAGE THRISSUR TALUK. ADV. SRI.JIJO PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.10731/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF EXECUTION PETITION NO.1791/2003. EXT.P2: COPY OF DRAFT SALE PROCLAMATION IN E.P.NO.1791/03. EXT.P3: COPY OF OBJECTION IN E.P.NO.1791/03. EXT.P4: COPY OF E.A.NO.2707/04 IN E.P.NO.1791/03 IN O.S.NO.2932/00 OF PRINCIPAL MUNSIFF, THRISSUR. EXT.P5: COPY OF COUNTER IN E.A.NO.2707/04. EXT.P6: COPY OF ORDER DATED 6.12.2004 PASSED BY THE PRINCIPAL MUNSIFF, THRISSUR IN E.A.NO.2707/04 IN E.P.NO.1791/03 IN O.S.NO.2932/2000. EXT.P7: COPY OF JUDGMENT DATED 27.2.2009 IN C.M.A.NO.17/05 BY THE 1ST ADDITIONAL DISTRICT COURT, THRISSUR. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.10731 OF 2009 (O) ----------------------------------- Dated this the 9th day of December, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to set aside Ext.P7 order passed by the District Court, Thrissur in C.M.A.17/2005 whereby Ext.P6 order passed by the Principal Munsiff, Thrissur was confirmed. 2. Petitioner is the judgment debtor in E.P.No.1791 of 2003 in O.S.No.2932 of 2000 on the file of the Munsiff Court, Thrissur, and the respondent is the decree holder. Decree executed in the above suit was one passed in a suit for money. In execution of the decree, an immovable property belonging to the judgment debtor having an extent of 271/6 cents comprising a residential building was attached and brought to WPC.10731/09 2 sale. The decree holder after getting permission of the court bid in the auction and purchased the property for the sale price of Rs.70,000/-. The judgment debtor moved an application under Order XXI Rule 90 of the Code of Civil Procedure impeaching the sale as vitiated by fraud and material irregularity. The execution court, after conducting an enquiry, dismissed that application. That decision of the execution court was challenged by way of an appeal as C.M.A.No.17 of 2005 before the Ist Additional District Court, Thrissur. Negativing the challenges raised by the appellant/judgment debtor, the order of the execution court was confirmed. Ext.P6 is that order. Writ petition is filed challenging Ext.P6 order passed by the learned Munsiff and Ext.P7 judgment rendered by the learned Ist Additional District Judge, repudiating the challenges raised by the petitioner against the sale. 3. Notice given, the respondent has entered appearance. I heard the counsel on both sides. The main objection canvassed by the learned counsel appearing for the judgment WPC.10731/09 3 debtor/petitioner to impeach the sale is that in settling the proclamation for sale and publication, the court below failed to consider the mandatory provision covered by Order XXI Rule 64 of the Code of Civil Procedure as to whether a portion of the property attached is sufficient to satisfy the decree debt. The decree debt was only Rs.61,773/- and the property worth more than Rs.10 lakhs was brought to sale is the grievance canvassed by the learned counsel for the judgment debtor. Ext.P4 is the application moved by the judgment debtor for setting aside the sale setting forth a case that the sale is vitiated by fraud and material irregularity. It is seen the judgment debtor has taken a specific ground that the value of the property which was sold was much more than the decree debt to be satisfied and also nonconsideration of the question whether a portion of the property would be sufficient had vitiated the sale. The learned Munsiff while dismissing Ext.P4 application has found fault with the petitioner/judgment debtor for not raising the objection canvassed as to the value of the property when notice was given under Order XXI Rule 66 of the Code of Civil Procedure. WPC.10731/09 4 It is also seen the challenge canvassed on that ground by the judgment debtor was not even adverted to by the learned District Judge while confirming Ext.P6 order under Ext.P7 judgment holding that there is no merit in the application moved by the petitioner/judgment debtor to set aside the sale. I am afraid both the courts have lost sight of the fact that Order XXI Rule 64 of the Code of Civil Procedure cast a duty on the court to examine the question whether a portion of the property is sufficient to satisfy the decree. Whether or not an objection is raised by the judgment debtor, the mandate under Order XXI Rule 64 of the Code of Civil Procedure has to be complied with by the court executing the decree. For a decree debt of Rs.70,000/- a property comprising a building having an extent of 271/6 cents in the present case had been brought to sale. The learned counsel appearing for the respondent/decree holder could not convincingly present any tenable argument to hold that the value of the property sold reflected the sale price. View taken by the learned Munsiff that only if an objection is raised by the judgment debtor, then alone the court need go into the question whether the portion WPC.10731/09 5 of the property is sufficient to be sold goes against the mandate of Rule 64 of Order XXI of the Code of Civil Procedure. If it is shown that a portion could have satisfied the decree debt and not the sale of the whole property was not required, there cannot be any doubt that the sale has to be treated as vitiated as the sale had been conducted flouting the mandate under Order XXI Rule 66 of the Code of Civil Procedure. A duty is cast upon the execution court to decide whether it is necessary to bring the entire property to sale or such portion thereof as may be necessary to satisfy the decree. Even if the sale of the whole property is proceeded, an enquiry has necessarily to be gone into whether a separate portion thereof would be sufficient to satisfy the decree debt. The apex court in Ambati Narasayya v. M.Subba Rao and another (AIR 1990 SC 119) has held in unmistakable terms that there is a duty cast upon the court under Order XXI Rule 64 of the Code of Civil Procedure to sell such property or a portion thereof as necessary to satisfy the decree. I find that the sale conducted in the present case without going into the question whether a portion of the property attached in the WPC.10731/09 6 execution proceedings was sufficient to satisfy the decree is vitiated and on that ground it is liable to be set aside. The learned counsel for the judgment debtor submitted that he is prepared to discharge the entire decree debt with the commission, incidental expenses, value of the stamp paper etc. incurred by the decree holder/auction purchaser. It is also submitted that a sum of Rs.85,000/- has already been deposited before the execution court. Having regard to the fact that the decree had been passed as early in 2004, I find adequate compensation has to be paid to the purchaser where in spite of the sale he had been driven from one court to another and thereby denied from enjoying the fruits of the decree. Petitioner shall deposit a further sum of Rs.10,000/- more to satisfy the decree debt and also to compensate the injury likely to be suffered by the decree holder. The learned counsel for the decree holder submits that over and above the decree debt to satisfy the sale price, he had deposited Rs.9,000/- and also produced stamp paper for the value of Rs.1,400/- for issuing the sale certificate. The decree holder shall be entitled to receive the sum of Rs.85,000/- already WPC.10731/09 7 deposited by the judgment debtor and also Rs.10,000/- which is ordered to be given as compensation under this judgment apart from getting release of Rs.9,000/-, which had been deposited as the balance sale price. The court below shall also return the stamp paper with an order of the District Collector directing for refund of the amount after deduction of the commission as per rules so that the decree holder will be able to collect whatever amount that can be collected on cancellation of the stamp paper. Petitioner/judgment debtor shall deposit the sum of Rs.10,000/- (Rupees ten thousand only) within two weeks from the date of this judgment, and on such deposit, the court below shall pass appropriate orders to close the execution proceedings recording the satisfaction of the decree, taking note of the directions/observations made above. Writ petition is accordingly disposed. S.S.SATHEESACHANDRAN JUDGE prp