IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH CIVIL REVISION PETITION No.2610 of 2011 Between: Godavarthy Venkateswarlu ..... PETITIONER AND Kudithipudi Venkateswara Rao .....RESPONDENT The Court made the following: THE HON'BLE MR JUSTICE V.ESWARAIAH CIVIL REVISION PETITION No.2610 of 2011 O R D E R: Heard both the counsel appearing for the respective parties. Petitioner is the Judgment Debtor who suffered a decree dated 29.12.2006 in O.S.45/2006 on the file of the Principal Senior Civil Judge, Tenali for recovery of money. As the decretal amount was not paid, the respondent/decree holder filed E.P.4/2009 after the lapse of three years for recovery of Rs.3,55,332-84 ps and the E.P.costs of Rs.19,754-50 ps, under Or.21 Rules-54, 64 and 66 CPC seeking to bring the property of the petitioner/Judgment Debtor an extent of Ac.2.40 cents in D.Nos.414/1 & 2 situated at Mulpur village, Amarthapur Mandal, Guntur District for sale in public auction for realization of the decretal amount. It is stated that the sale was conducted on 30.05.2011 and one Guttikonda Venkataramaiah was declared as the highest bidder for a sum of Rs.13,05,000/- among four bidders, who have offered a little bit less i.e. Rs.12,30,000/-, Rs.12,45,000/- and Rs.12,90,000/-. It is the case of the petitioner that admittedly the decretal amount was only Rs.2,91,000/- and the E.P.amount is Rs.3,55,332/- and therefore, sale of 1/3rd suit schedule property is enough to satisfy the E.P.amount and thus, it is stated that there is material irregularity and also violation of Or.21 Rule-64 CPC. Order 21 Rule-54 CPC deals with the attachment of the immovable property, so as to enable the Court to order proclamation of sale of the property. Order 21 Rule-60 CPC deals with the power to order property attached to be sold and proceeds to be paid to the person entitled. Order 21 Rule-66 CPC deals with proclamation of the sale by public auction. The learned counsel for the petitioner submits that under Or.21 Rule-64 CPC, in execution of the decree, the entire property need not be sold, and a portion of the property shall only be sold, if such sale of portion of the property is sufficient for recovery of E.P.amount. In support of his contention, he relied on a judgment of the Hon’ble Supreme Court in the case of Sai Enterprises vs. Bhimreddy Laxmaiah[1] wherein the Apex Court, after extracting the provision under Or.21 Rule-64 CPC, held as follows: “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) 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 v. M. Subba Rao and Anr. 1989 Suppl. (2) SCC 693.) The duty cast upon the Court to sale 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 (Dead) by LRs. And Ors. v. Siddappa and Anr. The position was also highlighted in Balakrishnan v. Malaiyandi Konar” On the other hand, the learned counsel for the respondent/decree holder submits that even assuming that there is any irregularity in conducting the sale by way of public auction, the petitioner has got an effective remedy under Or.21 Rule-90 CPC by filing an application to set aside the sale on the ground of irregularity or fraud. He further submits that this revision petition under Sec.115 CPC is not maintainable, as the same is not filed against any particular decision or order. It is stated that if any decision or order made by the Court below, either under Or.21 Rule- 90 CPC in any of the application, it is open for the petitioner to challenge the same in appropriate proceedings. But this Civil Revision Petition is not filed against any specific decision or order and hence, the Civil Revision Petition under Sec.115 CPC is not maintainable. I accepted the contentions of the learned counsel for the respondent/decree holder. However, as prima facie it appears that the Court below has not followed the procedure as contemplated under Or.21 Rule-64 CPC in the instant case, and also as explained and clarified by the Hon’ble Supreme Court in the aforesaid judgment with regard to manner and method in which the property has to be sold under Or.21 Rule-64 CPC, I deem it appropriate to permit the petitioner/Judgment Debtor to avail the remedy by filing a petition under Or.21 Rule-90 CPC before the Court below, within a period of two weeks from today, and on filing such petition, the Court below may consider and pass appropriate orders, in accordance with law. In view of the aforesaid facts and circumstances, I also deem it appropriate to grant status quo to be maintained by both parties in all respects for a period of three weeks from today. The Civil Revision Petition is accordingly disposed of. No order as to costs. ________________ V.ESWARAIAH,J Dated: 22.07.2011 Dsr [1] (2007) 13 SCC 576