KARIMBIL ICE AND COLD STORAGE COMPANY Vs. SBT

JUDGEMENT

(1.) THE first respondent filed suit O.S. No. 3 of 1975 for recovery of a sum of Rs. 8,73,312.81 against the petitioners. The said amount was due to the plaintiff-Bank as per the mortgage deed dated 21.1.1971 executed in its favour by the petitioners. The suit was decreed and charged on the properties mortgaged. The Judgment debtors had paid Rs. 4,95,000/- towards the decree debts. However, as per the order in E.P. 68/87 the properties had been put up for sale. The application filed by the first petitioner under O.21 R.69 and S.151 of the Code of Civil Procedure was rejected by the Court below. Being aggrieved by the aforesaid order the present revision petition has been filed.

(2.) THE schedule of properties attached to the execution petition E. P. 68/ 1987 in O.S. No. 3/1975 contains four lot each having different items of properties. The details of the properties described in the schedule are given below:

(3.) THE learned counsel for the petitioners submits that in order to realise the balance decree amount, the entire properties detailed in the petition schedule need not be sold. A portion of the property alone would be sufficient to recover the entire decree debt, the counsel adds. In support of this plea, strong reliance is placed on R.64 of O.21 which proclaims that 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 he sold, "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", so held by the Supreme Court in Ambati Narasayya v. M. Subba Rao and another (AIR 1990 SC 119) It further clarified: "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." It gives a well meant caution as this: "Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without jurisdiction." However, it is confronted by pinpointing that the term "may" in R.64 does confer only a discretion on the Court to order or refuse to order a sale. But there is no reason to befuddle on this score in as much as the Supreme Court in unequivocal terms declared in Ambati Narasayya's case supra that the duty conferred on the Court under R.64" ..... is not just discretion, but an obligation imposed on the Court."