DHARMADEVAN Vs. KESAVAN UNNIPARAN

JUDGEMENT

(1.) The matter arises in execution.

(2.) The decree holder in O.S. 7 of 1946 on the file of the Principal Subordinate Judge's Court, Ottapalam, who is represented by the first respondent sought to attach and sell the interest of his judgment debtor in the decree in O. S.21 of 1946 pending in the same court. In pursuance to E. P. 83 of 1961 the decree in O. S. 21 of 1946 was attached. The appellants who are the legal representatives of the judgment debtor contended in reply to the notice issued under O.21 R.66, C. P. C. that in view of R.178 of the Madras Civil Rules of Practice the decree in O. S.21 of 1946 cannot be sold in execution of another decree. The learned Subordinate Judge overruled the objection and his decision was confirmed in appeal by the District Judge. The second appeal is filed against the decrees of the courts below.

(3.) S.51, CPC. enumerates the various modes in which the court may order the execution of a decree; clause (b) enables the court to enforce execution by attachment and sale or by sale without attachment of any property. The power of court to enforce execution under S.51, CPC. is subject to such conditions and limitations as may be prescribed by rules. S.60,"CPC. enumerates the property which is liable to attachment and sale in execution of a decree. Though decrees are not specifically referred to in S.60(1) of the CPC. they will be taken in by the clause "all other saleable property, movable or immovable, belonging to the judgment debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit". In view of S.51 and 60 decrees are liable to be attached and sold in execution of another decree. O.21, R.53, CPC. deals with attachment of decrees. O.21, R.53(1) provides for attachment of decrees either for payment of money or for sale in enforcement of a mortgage or charge. O.21, R.53 (4) relates to decrees other than those mentioned in sub-r.(1). O.21, R.53 sub-r.(2) and (3)' enable the holder of a decree who has attached another decree of the nature specified in sub-rule (1) to execute the attached decree in the same manner as the holder thereof. O.21. R.53(2) declares the attaching decree holder as the representative of the holder of the attached decree. But there is no such provision in the Code for execution of decrees of the nature specified in O.21, R.53, sub-r.(4). If in view of R.178 of the Madras Civil Rules of Practice such decrees cannot be sold in execution, what is the remedy of the attaching decree holder. The preliminary decree for partition which has been attached in the case before us is not executable. It is not possible to hold in view of S.60, CPC. that such decrees are not attachable. The attachment of such decrees has only to be under O.21, R.53(4), CPC. But the rule is silent as to how the fruits of the decree have to be realised after attachment. Such decrees have therefore to be sold in court auction as they are 'other saleable property of the judgment debtor' under S.60(1), CPC. Counsel for the appellants did not demur to these propositions but according to him decrees coming under O.21, R.53(4) cannot be sold in court auction in view of R.178 of the Madras Civil Rules of Practice. The plea on behalf of the respondents is that the said rule in so far as it prohibits the court sale of decrees taken in by O.21, R.53(4) is invalid. The Madras High Court in Venkalaswamy v. Venkataramana Rao AIR 1934 Mad. 692 (2) while repelling a similar contention and upholding the validity of R.178 of the Madras Civil Rules of Practice observed: