CASE NO.:
Appeal (civil) 2062 of 2000
PETITIONER:
Balakrishnan
RESPONDENT:
Malaiyandi Konar
DATE OF JUDGMENT: 17/02/2006
BENCH:
ARIJIT PASAYAT & R.V. RAVEENDRAN
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment rendered by a
learned Single Judge of the Madras High Court holding that
the auction sale held in an execution proceeding and
confirmation thereof was illegal. The matter was remitted to
the Executing Court with a direction to consider the objection
in terms of Section 47 of the Code of Civil Procedure, 1908 (in
short the 'Code') and to consider whether there was any need
for sale of the property in view of the deposit made by the
judgment debtor-respondent herein. The appellant who is the
decree holder purchased the property in the Court auction
sale. The proceedings relate to O.S.No.385/1977 on the file of
District Munsif, Kulithalai.
The background facts need to be noted in brief.
The suit was filed by the appellant on the basis of a
promissory note executed by the respondent in favour of the
appellant. The suit was decreed. In the proceeding for
execution of the decree in his favour (E.P.No.725/1981 on the
file of District Munsif, Kulithalai later renumbered as
E.P.45/1983 on the file of District Munsif, Manapparai) the
appellant purchased the judgment debtor's property on
8.7.1981 in Court auction after obtaining permission of the
Court for a sum of Rs.7,510/-. The sale was confirmed on
22.8.1983.
Respondent filed EA 17/83 to set aside the sale on the
ground that he is entitled to the benefits under Tamil Nadu
Debt Relief Act, 1980 (in short the 'Debt Relief Act'). On
30.4.1983 application filed by the respondent was dismissed
on the ground that the respondent has not made out a case
for getting benefit under the Debt Relief Act. It was also held
that apart from the property covered by the auction sale, he
had got income from other properties. Respondent filed Civil
Revision Petition No.3963 1983 before the Madras High Court
against the order of dismissal of EA 17/83. By order dated
10.9.1987 the High Court dismissed the Civil Revision Petition
upholding the findings of the Executing Court.
EP 80/93 was filed by the appellant on 13.8.1993 under
Order XXI Rule 95 of the Code for delivery of possession.
Respondent filed counter affidavit inter alia taking the stand
that the Execution Petition was liable to be dismissed, as it
was filed beyond the limitation period of one year prescribed
under Article 134 of the Limitation Act, 1963 (in short the
'Limitation Act'). The trial Court overruled the objections and
ordered delivery. Respondent thereafter filed Civil Revision
Petition No.2328/1994 before the High Court which was
allowed on 13.7.1998 by the impugned judgment.
During the hearing of the case, the High Court in order to
shorten litigation gave option to the judgment debtor to
deposit decretal amount with interest. In fact the respondent
deposited Rs.35,000/-. Though at the time of hearing, learned
counsel appearing for the present appellant accepted that the
offer of judgment debtor (respondent herein) was a reasonable
one, he informed the Court that his client was not agreeable to
receive any amount and wanted the property. The High Court
on examining the scope and ambit of Order XXI Rule 64 of the
Code held that the Executing Court while directing the sale
had not kept in view the correct parameters of the
requirements enjoined by the said provision, in particular to
decide first whether it is necessary to bring the entire attached
property to sale. Accordingly, the following directions were
given:
"In view of the abovesaid principle, I am of the
view that the Executing Court without
application of mind has directed the sale of the
property of nearly 5 acres for a paltry sum of
Rs.4,000/- and odd. Now the petitioner has
shown his bona fide by depositing the amount
of Rs.35,000/- and I am of the view that the
parties can be given an opportunity to
establish the same. It is open to the petitioner
to convince the lower Court as to which
portion of the property is sufficient to satisfy
the decree amount and the lower Court is
directed to consider the matter afresh, in the
light of the decisions of the Supreme Court as
well as the judgment of this Court referred
above, dispose of the claim of the parties in
accordance with law. Since the Executing
Court has not acted in accordance with the
above said principles of the Supreme Court, I
am of the view that the sale itself is liable to be
set aside even though no application has been
filed by the petitioner. However, the objection
filed by the petitioner is directed to be treated
as a petition under Section 47 CPC. Hence, the
matter is remitted back to the Executing Court
with direction to dispose of the objection
petition afresh. The Executing Court can also
consider the need for the sale of property in
view of the deposit made by the petitioner."
Learned counsel for the appellant in support of the
appeal submitted that the High Court has lost sight of the fact
that the sale was confirmed on 22.8.1983. The earlier petition
filed in the execution proceedings was rejected and the High
Court also did not interfere. That matter had attained finality.
The subsequent execution proceeding for delivery was filed.
The objection filed by respondent related to the applicability of
Article 134 of the Limitation Act and the High Court could not
have examined the matter in the background of Order XXI
Rule 64 of the Code. It is further submitted that even
conceding for the sake of arguments that Article 134 of the
Limitation Act had application, the delay in filing the
application is clearly attributable to the respondent himself.
He had filed the objection and after its dismissal by the trial
Court had moved the High Court.
In response, learned counsel for the respondent
submitted that Article 134 of the Limitation Act clearly applies
to the facts of the case. Though the High Court did not advert
to that provision yet for doing substantial justice the Court
had indicated the parameters of Order XXI Rule 64 of the
Code. Property measuring about 5 acres was sold for a paltry
sum of Rs. four thousand. The judgment debtor had deposited
Rs.35,000/- which was sufficient to satisfy the decretal
amount and the interest that would have earned had the
payment been made at the initial stage.
Order XXI Rule 64 reads as follows:
"Power to order property attached to be sold
and proceeds to be paid to person entitled-
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, 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."
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 (AIR 1977 SC 1789). 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. (2005 (10) SCC 235).
In S.S. Dayananda v. K.S. Nagesh Rao and Ors. (1997 (4)
SCC 451) it was held that the procedural compliance of Order
XXI Rule 64 of the Code is a mandatory requirement. This was
also the view expressed in Desh Bandhu Gupta v. N.L. Anand
and Rajinder Singh (1994 (1) SCC 131).
Therefore, on the background facts noted by the High
Court the auction sale did not meet the requirements of law.
But at the same time it appears that the question regarding
the legality of the sale had attained finality because of the
confirmation of sale on 22.8.1983. Though it is contended by
learned counsel for the respondent that the order dated
10.9.1987 passed by the High Court rejecting CRP 3963/1983
filed by the judgment debtor seeking relief, was relatable to the
Debt Relief Act, that did not have the effect of reviving the
question relating to violation of Order XXI Rule 64 of the Code.
The residual question is the effect of Article 134 of the
Limitation Act, as appearing in the Schedule to the Limitation
Act relatable to, Sections 2(j) and 3 providing for periods of
limitation. Article 134 reads as follows:
Description of
application
Period of limitation
Time from which
period begins to
run
134. For delivery of
possession by a
purchaser of
immovable property
at a sale in
execution of a
decree.
One year
When the sale
becomes absolute.
The limitation for the purpose of Article 134 starts from
the date of confirmation of sale. (See Ganpat Singh (dead) by
Lrs. v. Kailash Shankar and Ors. 1987 (3) SCC 146). In Pattam
Khader Khan v. Pattem Sardar Khan and Anr. (1996 (5) SCC
48) this court held that it is not from the date when sale
certificate is issued that the limitation starts running. The sale
becomes absolute on confirmation under Order XXI Rule 92 of
the Code effectively passing title. It cannot be said to attain
finality only when sale certificate is issued under Order XXI
Rule 94. There can be variety of factors conceivable for which
delay can be caused in issuing a sale certificate. The period of
one year limitation now prescribed under Article 134 of the
Limitation Act in substitution of a three year period prescribed
under Article 180 of the Indian Limitation Act, 1908 is
reflective of the legislative policy of finalizing proceedings in
execution as quickly as possible by providing a quick forum to
the auction purchaser to ask for the delivery of possession of
the property purchased within that period from the date of the
sale becoming absolute rather than from the date of issuance
of the sale certificate. On his failure to avail such a quick
remedy the law relegates him to the remedy of a regular suit
for possession based on title, subject again to limitation.
Though it was submitted by learned counsel for the
appellant that the respondent was responsible for the delay
caused as he had filed the Civil Revision before the High
Court, the plea is clearly untenable. The Civil Revision Petition
was dismissed on 10.09.1987.
Above being the position, we are not inclined to interfere
in the matter. Though the question of applicability of Order
XXI Rule 64 of the Code should not have been considered by
the High Court in view of the dismissal of earlier Civil Revision
Petition, even otherwise no relief could have been granted to
the appellant in view of Article 134 of the Limitation Act.
Substantive justice can be done to the parties if the order
passed by the High Court remitting the matter is maintained.
But the question that has to be considered will not be the
validity of the sale, but the maintainability of the application
for delivery of the property.
The appeal is accordingly dismissed. No costs.
