RADHASHYAM NAYAK Vs. SUKADEV NAIK

JUDGEMENT

(1.) THE judgment -debtor in execution case No. 11 of 1981 pending before the Subordinate Judge, Balasore, has filed this petition under Section 115, Civil Procedure Code challenging the order dated 5.5. 1982 rejecting his objection under Order 21, Rule 17, Civil Procedure Code to the valuation of the property attached. The opposite party (decree -holder), filed C. S. No. 122 of 1978 before the Subordinate Judge, Balasore, for partition of the suit property. While disposing of the suit the Court directed the petitioner (defendant) to pay to the opposite party (plaintiff) 30 quintals of paddy for bringing about equalisation of the shares allotted to the parties. The price of the paddy was assessed at Rs. 3,150/ - at the price prevailing then. Thereafter the opposite party levied execution for realisation of the sum of Rs. 3,150/ -and sought to attach Ao. 46 2/3rd decimals of land under Plot No. 318, Khata No 117 in Mouz'a Gourdia in Balasore district along with house standing thereon belonging, to the petitioner. When the question of attachment of the aforementioned property came up before the executing Court the petitioner filed an objection stating inter alia that the proper and reasonable valuation of the proparty would be at least Rs. 25,000/ -and hence attachment of the proparty sought is not necessary to meet the decretal dues of the decree -holder. The opposite party, on the other hand contended that the attachment of the property was necessary since the share of the judgment -debtor therein was l/3rd.

(2.) BEFORE proceeding to examine the impugned order on merit it will be helptul to quote the provision under Order 21, Rule 17(4): 'When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree accordingly to the nature of the application :Provided that, in the case of a decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree.' From the aforesaid provision it is clear that while considering the question of attachment of property in execution of a decree for payment of money, the Court must be satisfied that the value of the property attached shall, as nearly as may be, correspond with the amount under the decree. The provision is intended to avoid unnecessary attachment of properties much in excess of what is necessary to meet the decretal dues in the execution case and thereby bring about the harassment of the Judgment -debtor. In a case where it is brought to the notice of the Court that the valuation of the property proposed to be attached is much more than the amount involved in the execution case, the Court has to examine and attach only such part of the property which, as nearly as possible, would be necessary to meet the amount due under the decree.

(3.) THE provision under the proviso to Order 21, Rule 17(4) casts a duty on the Court to be satisfied about the valuation of the property before its attachment. It is not a mere formality but is intended to serve a purpose. As indicated earlier, the purpose is to avoid harassment to the judgment -debtor by unnecessarily attaching his property which may not be required to be sold for satisfying the decretal amount. It may be noted here that after the property is attached, the attached property can be released only after the decree is fully satisfied. In view of this analysis the contention of Shri Sahu that the impugned order needs no interference since the judgment -debtor has an opportunity of getting release of the property attached at the time of sale has to be rejected. The view taken by me gains support from the decision of the Andhra Pradesh High Court in the case of Ravi Nagabhushanam v. Neti Gopala Krishna Morty. A. I. R. 1969 A. P. 184, where the Court has made the following observations :