PARAMESWARAN Vs. SREEDHARAN

JUDGEMENT

(1.) THE auction purchaser in O. S. 19/1105 of the District court of Alleppey is the appellant in this case. In execution of the decree in that case properties belonging to the judgment-debtors were sold in court auction and purchased by the appellant. THE 9th defendant put in a petition to set aside the sale on the ground of material irregularity. THE court below allowed the petition and set aside the sale. THE appeal is from that order.

(2.) THE reason given by the leaned District Judge for setting aside the sale is that the sale was held in contravention of the terms of the decree. THE decree was in favour of plaintiffs 1 and 2 and separate amounts were awarded to the two plaintiffs under the decree. THE first plaintiff was awarded Fs. 8222 1/4 and interest and the 2nd plaintiff Fs. 1014 3/8 and interest. Both the plaintiffs filed a joint execution petition for the amounts due to them. Though the amounts were separately mentioned in the execution petition, the properties were proclaimed for the consolidated amount and the sale took place for that amount. THE learned judge held that the procedure adopted was contrary to the provisions of the Code of Civil Procedure and that therefore the sale was invalid. THE learned judge therefore did not go into the other allegations in the petition viz. , material irregularity and fraud in publishing and conducting the sale and gross under-valuation.

(3.) IF two decree-holders under the same decree apply separately for the sale of a property belonging to the judgment-debtor, it will be difficult to conduct the sale unless the property is divided and separate portions sold for the separate amounts. In order to avoid such difficulties it is always better that the property is sold for the whole decree amount. This is what was done in the present case, and we find no reason to hold that the procedure is opposed to any provision in the Code of Civil Procedure. Learned counsel for the respondent referred to certain rulings which lay down that in the case of decrees of this nature the decree-holders cannot be said to be joint decree-holders. IF is true that the decree in such a case cannot be said to be one passed jointly in favour of more persons than one and an execution application by one will not enure to the benefit of the others so far as limitation is concerned. But we are not concerned with that question in this case. Here we are only concerned with the question whether when a decree is passed severally in favour of mor persons than one they can file a joint execution petition or whether they are bound to file separate execution petitions. We are of opinion that there is nothing in law to prevent them from filing a join execution petition.