(SINGANAMALA) VENKATASWAMY Vs. (PESE) VENKATARAMANA RAO

JUDGEMENT

(1.) The petitioner in E.P. No. 36 of 1930 on the file of the District Judge of Anantapur, is the appellant. The appeal raises an important question of law, namely, whether in execution of a money decree, a preliminary decree for partition obtained by the judgment-debtor can be validly sold. The facts are simple and may be briefly stated. The appellant obtained a money decree in O.S. No. 357 of 1918 on the file of the District Munsif's Court, Bellary, against respondent 1 herein. The latter had obtained a preliminary decree for partition against the other respondents in O.S. No. 14 of 1923 (that is O.S. No. 20 of 1925 of the Sub-Court, Anantapur). In execution of the appellant's money decree this preliminary decree for partition was attached and thereafter his decree was transmitted to the District Court of Anantapur to enable him to execute the preliminary decree for partition. Respondent 1, that is, the decree- holder in the partition suit, does not raise any objection; but respondents 4 and 5, who are the contesting respondents, object to the execution on the ground that according to the law of procedure followed in Madras, a preliminary decree attached in execution of a money decree cannot be sold in execution of the latter decree. The appellant contends that even if this be the state of the law, which he says is not correct, inasmuch as respondent 1, the decree- holder in the partition suit, has no objection to the execution of the decree, it is not open to the judgment-debtors in the suit, namely, respondents 4 and 5, to raise any objection.

(2.) In support of his first contention that the preliminary decree can be sold, the appellant relies on Order 21, Rule 53, Clause 4, Order 21, Rule 64 and Section 60, Civil P.C. Order 21, Rule 53, provides two ways of executing decrees: by attachment of other decrees passed in favour of the judgment-debtor by other Courts or by the same Court. If the, attached decree is a money decree-which is not, the case here - then by the combined operation of Order 21, Rule 53, Clauses 1 and 2, the decree may be executed by realising the net proceeds in satisfaction of the execution of creditor's decree; if the attached decree is not one for money, then Order 21, Rule 53, Clause 4 applies. This sub-clause provides for the attachment of the decree. Order 21, Rule 64 says: Any Court executing a decree may order that...any property attached by it and liable to sale shall be sold,

(3.) Section 60, dealing with attachment, mentioning certain specific kinds of property liable to attachment and sale in execution of a decree, includes in the list "all other saleable property, moveable or immoveable, belonging to the judgment-debtor etc." and ends with the proviso that certain properties mentioned in the various clauses to the proviso shall not be sold. A decree of a Court is not one of the properties which is exempted in the proviso. The appellant contends that reading these provisions of law together, a preliminary decree for partition can be attached under Order 21, Rule 53 and that though "decrees" are not expressly mentioned in Section 60 as property liable to attachment and sale they nevertheless fall within the expression "all other saleable property" which occurs in that section and can therefore be sold by force of that section and Order 21, Rule 64 which deals with sale generally of attached decrees. This argument is supported by the decisions in Sudarsan Poddar V/s. Manindra Chandra Pal 1932 Cal. 80 and Gopal Nanashet V/s. Joharmal (1882) 16 Bom. 522. This statement of the law is not seriously contested by the respondent's learned Counsel; but what he argues is this, that having regard to Rule 178 of the Madras Civil Rules of Practice in Madras, a decree cannot be brought within the expression "all other saleable property" occurring in Section 60, Civil P.C., cannot therefore be sold. Rule 178 says: No decree shall be ordered to be sold in execution of another decree.