Order
1. This appeal is against the order of the High Court dated 4-11-1993 whereunder the objections filed by the appellants, under Section 47 of the Civil Procedure Code, have been dismissed. It must be mentioned that the appellants had earlier also filed objections under Order 21 Rule 90 which had also been dismissed.
2. In our view, the High Court has rightly not accepted all the other objections which had been filed by the appellants. However, one objection which needed serious consideration was that before selling the property, the executing court had not considered whether sale of only a part of the property would be sufficient to meet the decretal debt of approximately Rs 8000. The property sold is one acre of agricultural land. It appears to have been sold off for a paltry sum of Rs 1500 plus a prior mortgage debt of Rs 7000. We had called for the proceedings of the executing court and have gone through the same. We find that, at no stage, the executing court considered whether a sale of only a part of the property would be sufficient to meet the decretal debt.
3. In the case of Desh Bandhu Gupta v. N.L Anand (1994) 1 SCC 131 it has been held by this Court as follows:( & 150, paras 14 & 17)
“14. Proviso to sub-rule (4) of Rule 17 of Order 21 provides the procedure to receive the application for execution of the decree. In the case of a decree for payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree. Rule 64 of Order 21 charges the executing court that it may order attaching of any property to the extent that ‘such portion thereof as may seem necessary to satisfy the decree would be sold’. It is also enjoined under sub-rule (2)(a) of Rule 66 of Order 21 that where a part of the property would be sufficient to satisfy the decree the same be sold by public auction. Form 27 of Appendix E of the Schedule also directs the court auctioneer to sell so much of the said property as shall realise the sum in the said decree and costs. The Code, therefore, has taken special care charging the duty on the executing court and it has a salutary duty and a legislative mandate to apply its mind before settling the terms of proclamation and satisfy that if part of such property as seems necessary to satisfy the decree should be sold if the sale proceeds or portion thereof is sufficient for payment to the decree-holder or the person entitled under the decree to receive the amount and so much of that property alone should be ordered to be sold in execution. In Ambati Narasayya v. M. Subba Rao 1989 Supp (2) SCC 693 this Court held that it is the duty cast upon the court under Order 21 Rule 64 to sell only such property or a portion thereof as may be necessary to satisfy the decree. It is a mandate of the legislature which cannot be ignored. Therein for execution of a decree of a sum of Rs 2000 and costs, the appellant's 10 acres land was brought to sale which was purchased for a sum of Rs 17,000 subject to discharge of a prior mortgage of Rs 2000. This Court held that without the court's examining whether a portion of the property could be sold, the sale held was not in conformity with the requirement of Order 21 Rule 64 and it was held to be illegal and without jurisdiction. The sale was set aside and the court was directed to put the judgment-debtor in possession of the land and to refund the sale amount to the auction-purchaser. Further direction was given to execute the decree in accordance with law. In Mangal Prasad v. Krishna Kumar Maheshwari 1992 Supp (3) SCC 31 a shop was sold to realise a decree debt of about Rs 29,000 and the sale price at the auction was rupees one lakh and odd. This Court finding that it is excessive execution, set aside the sale and directed return of the sale amount to the auction-purchaser with interest @ 12%. In Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma (1977) 3 SCC 337 to recover the decree debt in two decrees, the properties situated in two different villages were brought to sale. In the first instance the property in ‘D’ village fetched a sum of Rs 16,880, which was sufficient to satisfy the decretal amount. The property in ‘G’ village was also sold which fetched a sum of Rs 12,000. This Court set aside the sale of ‘G’ village. Admittedly the site in sale is to the extent of 550 sq yards, situated in a commercial area around which the petroleum installations are established. Though, as contended by Shri Madhava Reddy, that there may be building regulation for division of the property into portions, but the court made no attempt to sell a portion of the property, maybe 100 yards or 150 yards out of it, or whether undivided portion thereof would have satisfied the decree debt. It could be legitimately concluded that the court did not apply its mind at all to this aspect as well.
17. Under Section 47 all questions relating to execution, discharge or satisfaction of the decree should be determined by the executing court alone. The pre-sale illegalities committed in the execution are amenable to the remedy under Section 47. Post-sale illegalities or irregularities causing substantial injury to the judgment-debtor are covered under Order 21 Rule 90. Sub-rule (1) thereof covers the field of material irregularities or fraud in publicity or conducting the sale. Sub-rule (2) enjoins proof thereof and the court should find that by reason thereof the applicant sustained substantial injury. The total absence of drawing up of the proclamation of sale and settlement of its term by judicial application of mind renders the sale a nullity being void. It is covered by Section 47. The non-application of mind whether sale of a part of the property would satisfy the decree debt is a material irregularity doing substantial injury to the appellant attracting Order 21 Rule 90. In either case the sale is liable to be set aside. It is true that there is distinction between mere irregularity and material irregularities and the sale is not liable to be set aside on proof of mere irregularity. It must be material irregularity and the court must be satisfied that on account thereof substantial injury was sustained by the appellant. The sale of 550 sq yards for recovery of a paltry sum of Rs 7780.33, without selling a portion thereof, caused substantial injury to the appellant.”
4. Not only are we bound by this judgment but we are in full agreement with the principle laid down therein. As the executing court has not observed its statutory duty, the sale will have to be and is hereby set aside. The purchaser shall be returned his monies and the property be handed back to the appellants. We clarify that it will be open for the judgment-debtor to seek execution of his decree in accordance with law.
5. The appeal stands disposed of accordingly. There will be no order as to costs.