Case: Takaseela Pedda Subba Reddy Vs. Pujari Padmavathamma &amp; Ors

the sale with respect to the properties situated in village Gudipadu, but granted a certificate to the appellant to file an appeal in this Court and hence this appeal before us.In this appeal the facts are more or less undisputed and the only serious point argued by the appellant is that the High Court was in error in setting aside the sale because even if the entire decretal amount was not mentioned in the sale proclamation, that was at best an irregularity which did not cause any prejudice to the judgment-debtor. It was also argued by learned counsel for the appellant that the judgment debtor did not raise any objection before the Executing Court against continuing the sale of other proper- ties situated in village Gudipadu. It was next submitted that the 5th respondent/decree holder had obtained an other decree in O.S 19 of 1953 and the total amount under the two decrees fully justified the selling of the properties in village Gudipadu also, particularly when the decree-holder had taken an order from the Executing Court for rateable distribution of the sale proceeds. It is true that the High Court has not considered this aspect of the matter, but in our opinion the contentions raised by the appellant are wholly untenable. It is not disputed that the warrant of sale was prepared long after the 5th respondent/decree holder had obtained the second decree in O.S. 19 of 1953 and yet no attempt was made by the decree-holder to approach the Court for amending the decretal amount mentioned in the sale proclamation, so as to include the decretal amount not only of the decree in the first suit No. O.S. 15 of 1949 but also of the decree in the second suit in O.S. 19 of 1953. In these circumstances, therefore, under the provisions of 0.21 r. 64 of the Code when the amount as specified in the sale proclamation was fully satisfied by the sale of the properties in village Devanoor, the Court should have stopped the sale of further items of the properties. It is manifest that where the amount specified in the proclamation of sale for the recovery of whic h the sale was ordered is realised by sale of certain items, the sale of further items should be stopped. This, in our opinion, is the logical corollary which flows from O.21 r. 64.of the Code which may be extracted thus:"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, shah 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."2. Under this provision the Executing Court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied. The words "necessary to satisfy the decree" clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. In other words, where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the Court should stop at that stage. In the instant case, we have already indicated that the sale of lands in village Devanoor alone fetched a sum of Rs. 16880 which was more than sufficient to satisfy the amount of Rs, 16, 715-8-0 mentioned in the sate proclamation. It is true that the decree-holder had obtained another decree in O.S. No. 19 of 1953, but there is nothing to show that the decree-holder had approached the Court for including the second decretal amount in the proclamation of sale. In these circumstances, therefore, we are clearly of the opinion that the Executing Court was not justified, in the facts and circumstances of the present case, in selling the properties situated in village Gudipadu. The fact that the judgment-debtor did not raise an objection on this ground before the Executing Court is not sufficient to put him out of Court because this was a matter which went to the very root of the jurisdiction of the Executing Court to sell the properties and the non-compliance with the provisions of O. 21 r. 64 of the Code was sufficient to vitiate the same so far as the properties situated in village Gudipadu were concerned. For these reasons the contentions raised by counsel for the appellant must be overruled.This, however, does not put an end to the issue, because the High Court, while setting aside the sale, has passed no order for adjusting the equities between the parties. According to the appellant he had taken possession of the properties purchased by him at the auction sale and had made substantial improvements. If the sale of these properties is to be set aside, the appellant will have to return these properties to the judgment-debtor, but he will be entitled to receive the value of improvements made by him during the time he was in possession of those properties in addition to the return of the sum of Rs. 12, 500/-. The Executing Court will have to hold an inquiry into the matter and determine the value of the improvements made by the appellant which will have to be paid to him. The appellant will not be entitled to any interest on the value of the improvements if he is found to be in possession of the properties. If, however, the Executing Court finds that the auction-purchaser was not in possession of the properties and the properties continued to be in possession of the judgment-debtor, then the question of the value of improvements will naturally not arise. In that event the judgment-debtor will have to refund the amount of Rs. 12, 500/- to the appellant with interest at the rate of 12% per annum from the date of sale upto the date of refund.3.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is true that the High Court has not considered this aspect of the matter, but in our opinion the contentions raised by the appellant are wholly untenable. It is not disputed that the warrant of sale was prepared long after the 5th respondent/decree holder had obtained the second decree in O.S. 19 of 1953 and yet no attempt was made by the decree-holder to approach the Court for amending the decretal amount mentioned in the sale proclamation, so as to include the decretal amount not only of the decree in the first suit No. O.S. 15 of 1949 but also of the decree in the second suit in O.S. 19 of 1953. In these circumstances, therefore, under the provisions of 0.21 r. 64 of the Code when the amount as specified in the sale proclamation was fully satisfied by the sale of the properties in village Devanoor, the Court should have stopped the sale of further items of the properties. It is manifest that where the amount specified in the proclamation of sale for the recovery of whic h the sale was ordered is realised by sale of certain items, the sale of further items should be stopped. This, in our opinion, is the logical corollary which flows from O.21 r. 64.of the Code which may be extractedCourt 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, shah 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 thethis provision the Executing Court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied. The words "necessary to satisfy the decree" clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. In other words, where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the Court should stop at that stage. In the instant case, we have already indicated that the sale of lands in village Devanoor alone fetched a sum of Rs. 16880 which was more than sufficient to satisfy the amount of Rs, 16, 715-8-0 mentioned in the sate proclamation. It is true that the decree-holder had obtained another decree in O.S. No. 19 of 1953, but there is nothing to show that the decree-holder had approached the Court for including the second decretal amount in the proclamation of sale. In these circumstances, therefore, we are clearly of the opinion that the Executing Court was not justified, in the facts and circumstances of the present case, in selling the properties situated in village Gudipadu. The fact that the judgment-debtor did not raise an objection on this ground before the Executing Court is not sufficient to put him out of Court because this was a matter which went to the very root of the jurisdiction of the Executing Court to sell the properties and the non-compliance with the provisions of O. 21 r. 64 of the Code was sufficient to vitiate the same so far as the properties situated in village Gudipadu were concerned. For these reasons the contentions raised by counsel for the appellant must be overruled.This, however, does not put an end to the issue, because the High Court, while setting aside the sale, has passed no order for adjusting the equities between the parties. According to the appellant he had taken possession of the properties purchased by him at the auction sale and had made substantial improvements. If the sale of these properties is to be set aside, the appellant will have to return these properties to the judgment-debtor, but he will be entitled to receive the value of improvements made by him during the time he was in possession of those properties in addition to the return of the sum of Rs. 12, 500/-. The Executing Court will have to hold an inquiry into the matter and determine the value of the improvements made by the appellant which will have to be paid to him. The appellant will not be entitled to any interest on the value of the improvements if he is found to be in possession of the properties. If, however, the Executing Court finds that the auction-purchaser was not in possession of the properties and the properties continued to be in possession of the judgment-debtor, then the question of the value of improvements will naturally not arise. In that event the judgment-debtor will have to refund the amount of Rs. 12, 500/- to the appellant with interest at the rate of 12% per annum from the date of sale upto the date of refund.