SA! ENTERPRISES v. BHIMREDDY LAXMAIAH & Anr.

The appellant filed suit against respondent No.2 for recovery of Rs.4.49 lacs. Respondent No. I also filed suit against respondent No.2 for foreclosure of the mortgage in his favour for Rs. I lac. During the pendency of first suit, trial Court ordered attachment before judgment. The suit filed by respondent No.I was decreed against respondent No.2. Respondent No. I filed an execution petition and sought for sale of mortgage property as respondent No.2 did not satisfy the decree. The appellant's suit was also decreed against respondent E No.2. Respondent No.2-judgment debtor was set ex parte as he did not attend the execution proceedings. Proclamation was published in a newspaper. Appellant filed execution petition seeking direction for sale of schedule property for realization of Rs.5.69 lacs. Respondent No.2 filed an application under Order 2I Rule 69 CPC r/w. F ss. 47 and 151 seeking direction to stop the auction and also sought for adjournment of the matter for settlement of terms and conditions of sale. Proclamation of sale was published in another newspaper and the decree holder-Respondent No.I purchased the property for Rs.3.12 lacs. Thereafter the appellant filed an application under Order 2I Rule 90 to set aside the G sale and to re-auction the schedule property, as the respondent no.I has not taken proper steps for wide publicity of the auction. It was stated that the value of the property was not less than 6 lacs. The judgment-debtor Respondent No.2 objected in the counter that the value of the property is more than rupees 8 lakhs. The sale was confirmed. The High Court, dismissed the Revision petition taking of the view that allegations made in the petition were general 40 H ,A "' ..... - )- _) ~ SAi ENTERPRISES v. BHIMREODY LAXMAIAH 41 in nature, and the affidavit with the petition does not disclose whether objection A relates to non publicatipn in the newspaper or places. In appeal to this Court, the appellant contended that the newspaper in which the publication was made was not a wide circulating newspaper. Further the value at which tile decree holder purchased was very low. Additionally, it was submitted that jn terms of Order 21Rule64 Code of Civil Procedure, B 1908. the Court was required to find out whether a part of the property would have sufficed to meet the decretal amount, which was not done in the present case. . I Disposing of the aipeal, the Court ., c HELD: I. The H~h Co"rl has oatego, kally fo"nd that iniHally the auction was notified in" ewspaper 'Eanadu' with wide circulation, and that was done on two occasio s. The grievance about the publication in a newspaper with inadequate circull; lti_ n would have been a factor provided the earlier notice was published in some tpape' not having wide dn:ulation, but admittedly D the publication was mad in newspaper having a wide circulation. Additionally, the stand regarding non ompliance with the requirements of Order 21 Rule 54 sub-rule (2) CPC is of no consequence because the objection has to be specific and not to be general in nature. In the absence of specific allegations it would not be possible for either parties or the executing court to deal with the same. This conclusion of the High Court is in order. However, the E grievance of the appellant so far non-compliance with the requirements of Order 21Rule64 of the Code is on sound footing. 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. ' [Paras 7, 8, 9J (44-D, F, G; 45-A] F r 1_ \ Takkasee/a Pedda Subba Reddi v. Pujari Padmavathamma, AIR (1977) SC 1789, r:elied on.

#2. In all execution proceedings, Court has to first decide whether it is G necessary to bring the entire property to saleor 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 H --{_ __ 42 SUPREME COURT REPORTS [2007) 4 S.C.R. A property is one, if a separate portion could be sold without violating .any provision of law only such portion of the proper, ty 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. The duty cast upon the Court to sell B only such portion thereof as is necessary to satisfy the decree is a mandate of the legislature which cannot be ignored. [Para 91 (45-B, C, DJ C D E F Ambati Narasayya v. M. Subba Rao and Anr., [I989) Suppl. 2 SCC 693, relied on.

#3. Considering the peculiar facts of the case and the long passage of time, respondent no.I is directed to pay a sum of Rs. I lac to the appellant within a period of three months. In case of non-payment of the aforesaid amount, the appellant shall be free to pay a sum of Rs.3.I2 lacs with 9% interest from the date of auction, to respondent no.I and get the property conveyed in his favour under the directions of the Court. [Para IO) f45-E-F)