V.CHITAMBARESH v. M.Subba Rao (AIR 1990 SC 119) and ParvathiAntharjanam v. Indian Bank (1996

V.CHITAMBARESH, J.-------------------------------W.P.(C) No. 1891 of 2010 -------------------------------Dated this the 17th day of August, 2012J U D G M E N TThe suit was one for return of money paid as advancewith damages consequent on the breach of a contract for sale. The suit was decreed for a total sum of ` 30,000/- against thedefendant and her assets. The plaint schedule property is 25cents of land which was agreed to be sold for ` 2,31,250/-. Butthe entire property was knocked off in auction for a paltry sumof ` 49,000/- in execution of the decree for money. 2. The auction purchaser filed E.A.No.8 of 2008 underOrder XXI Rule 95 of the Code of Civil Procedure for delivery onthe strength of sale certificate. The petitioner/judgment debtorhad filed a detailed objection to the same. Her contention ineffect was that only a parcel of the property need have been soldto satisfy the decree debt. The petitioner also filed E.A.No.14 of2009 under Order XXI Rule 106 of the Code of Civil Procedure to W.P.(C) No.1891 of 2010 2set aside the order of delivery. E.A.No.8 of 2008 was allowedand E.A.No.14 of 2009 has been dismissed which are impugnedin this original petition. 3. The principal contention of the petitioner is that theentire area of 25 cents should not have been sold to satisfy thedecree debt of `49,000/-. This contention is prima facieacceptable in view of Order XXI Rule 64 of the Code of CivilProcedure. A reference in this connection to AmbattiNarasayya v. M.Subba Rao (AIR 1990 SC 119) and ParvathiAntharjanam v. Indian Bank (1996 (1) KLT 319) are apposite. There is a duty cast upon the court to sell only such property ora portion thereof as is necessary to satisfy the decree. 4. True it is that the petitioner did not file aseparate petition under Section 47 of the Code of CivilProcedure. But it is trite law that the objection filed by her toE.A.No.8 of 2008 itself could be treated as one under Section 47of the Code of Civil Procedure. There is nothing wrong in W.P.(C) No.1891 of 2010 3permitting the petitioner to file an additional affidavit settingforth her grievance as regards the conduct of the sale. The factthat the property agreed to be sold for ` 2,31,250/- has beenknocked off for ` 49,000/- shocks the conscience of this Courtto a great extent. 5. The auction purchaser contends that the salewas conducted as early as on 18.12.2002 which was affirmedway back in the year 2007 itself. The auction purchaser pointsout that the petitioner was not diligent enough to protect herrights at any point of time. All these are matters to be takennote of by the court below while considering the claim afreshchallenging the auction sale. Interest of justice warrants thatE.A.Nos.8 of 2008 and 14 of 2009 in E.P.No.20 of 2002 inO.S.No.9 of 1998 on the file of the court of the Munsiff of Ranniare reconsidered. 6. Ext.P2 order dated 21.8.2009 in E.A.No.8 of2008 and Ext.P3 order dated 6.11.2009 in E.A.No.14 of 2009 are W.P.(C) No.1891 of 2010 4set aside for this limited purpose. The parties will appear in thecourt below on 24.9.2012. The Execution Court shall take theproceedings to a logical end without delay. The original petition is disposed of as above. Nocosts. V.CHITAMBARESH,Judge. nj.