AMBATI NARASAYYAversusM. SUBBA RAO & ANR.

                       AMBATI NARASAYYA
                                                                              A
                               v.
                      M. SUBBA RAO & ANR.

                           OCTOBER 6, 1989

    [K. JAGANNATHA SHETIY AND A.M. AHMADI, JJ.]                               B

      Code of Civil Procedure, 1908: Order XXI Rule 64-Execution
proceedings-Ordering entire property to be sold-Only such portion
of property to be put to sale consideration of which is sufficient to meet
the execution claim.

      Rule 64, Order XXI CPC empowers the Court executing a decree            c
to bring to sale any property attached by it llr snch portion thereof as
may seem necessary to satisfy the decree. The appellant's land measur-
ing IO acres was brought to court sale in execution of a decree. The
respondent purchasecfthe land for Rs.17,000. The sale was snbject to a
prior mortgage for Rs.2,000.                                                  D

        The appellant's application under Order XXI, Rule 90 for setting
 aside the sale was rejected by the executing court on the ground that the-
 sale was not vitiated by fraud or irregularity. The appeal against the
·order was dismissed by the Subordinate Judge. Before the appellate
 court the contention taken on behalf of the appellant was that the           E
 executing court ought to have sold only such portion of the land as
 would satisfy the decretal dues and the sale of the entire 10 acres was
 illegal and without authority. The court rejected that contention on the
 ground that it was a single piece of land and could not have been divided
 into parcels. The High Court also dismissed the revision.
                                                                              F   I

      Allowing the appeal by special leave,

     HELD: In all execution proceedings, the court has to first decide
whether it is nei:essary to bring the entire attached 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     G
bring only such portion of the property to sale the proceeds of which
would be sufficient to satisfy the claim of the decree holder. It is a
mandate of the legislature which cannot be ignored. Any sale held
without examining this aspect and not in conformity with this require-
ment would thus be illegal and without jurisdiction. [453H; 454A, H, BJ
                                                                              H

                                    451
     452         SUPREME COURT REPORTS                [1989] Supp. 1 S.C.R.

A         In the instant case, the amount claimed in the execution petition
     was about Rs.2,400. To realize that amount the land measuring 10 acres
     was sold for Rs.17 ,000. The land is not indivisible. Nor division is
     impracticable or undei.irable. Out of 10 acres, the court could have
     conveniently demarcated a portion and sold it. [454E-F]
B
           The sale must, therefore,.be set aside being in contravention of the
     provision of Rule 64, Order XXI CPC. [454H]

           Takkasee/a Pedda Subba Reddy v. Pujari Padmavathamma &
     Ors., [1977] 3 SCC 337 at 340, referred to.
c          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4195
     of 1989.

          From the Judgment and Order dated 16.2.1987 of the Andhra
     Pradesh High Court in C.R.P. No. 3750 of 1984.
D
           B. Kanta Rao for the Appellant.

           M.S. Ganesh for the Respondents.

           The Judgment of the Court was delivered by

           K. JAGANNATHA SHETTY, J. We grant special leave and pro-
     ceed to dispose of the appeal.

           In cb.S. No. 821/1973, there was ex parte decree against .the
     appellant for payment of Rs.2,000 and cost. In execution of the
f    decree, the appellant's land S. No. 116 at Bayanguda village measur-
     ing 10 acres was brought to Court sale. His small farm house was also
     located in the land. In the auction held the respondent purchased the
     land for Rs.17,000. The sale was subject to the prior mortgage for
     Rs.2,000 in favour of the Land-mortgage Bank Jangareddigudem. On
     31 May 1976 the sale was confirmed. On 26 July 1976, the appellant
C}   filed application under Order XXI Rule 90 for setting aside the sale. He
     impeached the auction sale broadly on three grounds namely: (i) that
     he was the owner of only one acre of land and the remaining 9 acres in
     the said survey number belonged to his father-Siddaiah, (ii) that the
     land was worth about Rs.70,000 but it was sold for a very low price of
     Rs.17,000 by fraudulent procedure followed by the authorities, and (iii)
lt   that he was not served with notice before attachment or sale.
               A. NARASAYYA v. M.S.RAO [SHE1TY, J.)                 453

     In support of the above allegations, the appellant entered the
                                                                           A
witness box as PW 2. He has also examined four other witnesses
besides producing documentary evidence marked as Ex. A-1 to A-13.
The auction purchaser in turn has examined three witnesses.

      On appraisal of the evidence, t)le executing court-the Principal
District Munsif, Kovvur, rejected the application of the appellant. He B
held that the sale was not vitiated by fraud or irregularity. The appeal
against that order was dismissed by learned Subordinate Judge at
Kovvur. Before the appellate court, one other contention was argued
on behalf of the appellant. It was contended that the executing court
ought to have sold only such portion of the land as would satisfy the
decretal dues and the sale of the entire 10 acres was illegal and without C
authority. The appellate court rejected that contention for the reason
that it is a single piece of land and could not have been divided into
parcels. The High Court of AndhraPradesh also dismissed the appel-
lant's revision, but expressed no opinion as to whether a portion of the
land could have been sold to satisfy the decree.
                                                                          D
       Hence this appeal.

       The principal question that has been highlighted before us
relates to the legality of the sale of 10 acres of land without considering
whether a portion of the land could have been sold to satisfy the
decree. It is said that the total sum claimed in the execution was E
Rs.2,395.50. The relevant provision which has a bearing on the ques-
tion is Rule 64 Order XXI of the Code of Civil Procedure and it reads
as follows:

           "Order XXI Rule 64: Power to order property attached to
           be sold and proceeds to be paid to persons entitled-Any F
           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, shall 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."                                         G

      It is of importance to note from this provision that in all execu-
tion proceedings, the Court has to first decide whether it is necessary
to bring the entire attached 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       l-1
     454         SUPREME COURT REPORTS               (1989] Supp. 1 S.C.R.

   portion of the property, the proceeds of which would be sufficient to
A
   satisfy the claim of the decree holder. It is immaterial whether ihe
  ·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, in our opinion, is not just
   a discretion, but an obligation imposed on the Court. Care must be
B taken to put only such portion of the property to sale the consideration
   of which is sufficient to meet the claim in the execution petition. The
   sale held without examining this aspect and not in conformity with this
   requirement would be illegal and without jurisdiction.

          In .Takkaseela Pedda Subba Reddy v. Pujari Padmavathamma
     and Ors., (1977] 3 SCC 337 at 340; this Court after examining the
.c   scope of Rule 64 of Order XXI CPC has taken a similar view:

                "Under this provision the executing Court derives jurisdic-
                tion to sell properties attached only to the point at which.
                the decree is fully satisfied. The words 'necessary to satisfy
D               the decree' clearly indicate that no sale can be allowed
                beyond the decretal amount mentioned in the sale procla-
                mation. 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
E               stage."

          We may again hark back to the case of the appellant. The
    amount claimed in the execution petition was about Rs.2,400. To
    realize that amount the land measuring 10 acres was sold for
    Rs.17,000. The appellate court has stated that the land being one,
 F could not have been divided. Shri Ganesh, learned counsel for the
    respondent sought to justify that view. But we find it difficult to
    appreciate that reason. It seems to be against common sense. The land
    is not indivisible. Nor division is impracticable or undesirable. Out of
    10 acres, tile <:;ourt could have conveniently demarcated a portion and
    sold it. Unfortunately, no such attempt was made and it was not even
 G. thought of. The Court has blind fold sold the entire property. This is a
    usual feature which we have noticed in most of the execution cases.
    We must deprecate this tendency. There is a duty cast upon,the Court
    to sell only such property or a portion thereof as necessary to satisfy
    the decree. It is a mandate of the legislature which cannot be ignored.
    We cl\nnot, therefore, sustain the impugned sale. It must be set aside
 H being in contravention of the provisions of Rule 64, Ord!er XXI CPC.
               A. NARASAYYA v. M.S.RAO [SHETIY, J.]                455

        In the result, we allow the appeal with costs. In reversal of the A
 orders of the courts below, we set aside the impugned sale. We direct
 the Executing Court first to put the appellant in possession of the land
 in qllestiOn and then refund the sale amount to the auction purchaser if
 it is in deposit. The Court, thereafter may proceed to execute the
 decree according to law and in the light of the observations made. This
.order shall be complied with within two months from the date of 8
 receipts of this order.

P,S.S. ·                                              Appeal allowed.