TAKKASEELA PEDDA SUBBA REDDI Vs. PUJARI PADMAVATHAMMA

JUDGEMENT

(1.) This appeal by certificate arises out of execution proceedings in respect of a decree obtained by the respondents/decree-holders. It appears that the 5th respondent/decree-holder Siddam Pedda Rami Reddi, hereinafter referred to as "SPR Reddi" - obtained a decree in O. S. No. 15 of 1949 from the Court of Sub-Judge kurnool against the judgment-debtor Pujari Subbarayudu - hereinafter referred to as "Pujari" or "judgment-debtor". The 5th respondent has also obtained another money decree against Pujari in another suit being O. S. No. 19 of 1953. The 5th respondent/decree-holder filed Execution proceedings No. 24 of 1953 in the trial Court for selling the properties belonging to the judgment-debtor in order to satisfy the decree in O. S. No. 15 of 1949 and he also applied for permission to bid at the auction sale. The first sale was held on October 12, 1954 at which the lands situated in villages Devanoor and Gudipadu were put to sale. But this sale was set aside as there was some delay in payment of the sale price. Consequently a second sale was held on March 2, 1955 at which the 5th respondent SPR Reddi purchased the lands situated in village Devanoor and the appellant/auction-purchaser T. P. S. Reddy purchased the lands in village Gudipadu. It is also not disputed that in the warrant of sale as also the sale proclamation, the decretal amount for which the properties were to be sold was mentioned as Rs. 16 715-8-0. The sale of lands in village Devanoor alone fetched a sum of Rs. 16.880/- at which the sale was knocked down. Thus it would appear that the sale proceeds of the lands in village Devannor were sufficient to satisfy the decretal amount mentioned in the proclamation of sale. Despite this fact the Court proceeded to sell the properties of the judgment-debtor in village Gudipadu which fetched Rs. 12.500/- and which were purchased by the appellant/auction-purchaser.

(2.) On April 20, 1955 the decree-holder obtained an order from the Court for rateable distribution of the sale proceeds. In other words, this order was passed by the Court not before the sale so that the entire decretal amount could have been mentioned in the sale proclamation but a few days after the sale had already taken place. This is rather an important aspect of the matter which appears to have been completely overlooked by the trial Court. On March 31, 1955 the Judgment-debtor Pujari filed an application to set aside the sale on various grounds, namely, that the sale was vitiated by material irregularities which caused serious preiudice to the judgment-debtor and that the properties sold by the Court were valuable properties and the same were grossly undervalued in the sale proclamation. Finally it was contended by the judgment-debtor that once the sale of the properties in village Devanoor was sufficient to satisfy the amount mentioned in the sale proclamation, the Court should have stopped the sale as required by the mandatory provisions of O. 21, Rule 64 of the Code of Civil Procedure - hereinafter referred to as the Code - instead of continuing the sale of the properties in village Gudipadu. The trial Court, however, after hearing the objections of the decree-holder rejected the application of the judgment-debtor. Thereafter the judgment-debtor preferred an appeal before the High Court which, while negativing the grounds taken by the judgment-debtor regarding the material irregularities in the conduct of sale or the under-valuation of the properties, accepted the plea of the judgment-debtor regarding the non-compliance with the provisions of O. 21, R. 64 of the Code. The High Court held, and in our opinion rightly, that as the sale of the properties in village Devanoor fetched an amount which was sufficient to satisfy the amount mentioned in the sale warrant, the Executing Court was not justified in proceeding with the sale of the properties in village Gudipadu and should have stopped the sale. The High Court accordingly accepted the plea of the judgment-debtor and set aside 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.

(3.) 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 properties situated in village Gudipadu. It was next submitted that the 5th respondent/decree-holder had obtained another 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 Order 21, Rule 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 which 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: