AMBATI NARASAYYA versus M. SUBBA RAO & ANR.

Citation: [1989] SUPP. 1 S.C.R. 451 · Decided: 06-10-1989 · Supreme Court of India · Bench: K. JAGANNATHA SHETTY · Disposal: Appeal(s) allowed

Judgment (excerpt)

AMBATI NARASAYYA 
A 
v. 
M. SUBBA RAO & ANR. 
OCTOBER 6, 1989 
[K. JAGANNATHA SHETIY AND A.M. AHMADI, JJ.] 
B 
Code of Civil Procedure, 1908: Order XXI Rule 64-Execution 
proceedings-Ordering entire property to be sold-Only such portion 
of property to be put to sale consideration of which is sufficient to meet 
the execution claim. 
Rule 64, Order XXI CPC empowers the Court executing a decree 
to bring to sale any property attached by it llr snch portion thereof as 
may seem necessary to satisfy the decree. The appellant's land measur-
ing IO acres was brought to court sale in execution of a decree. The 
respondent purchasecfthe land for Rs.17,000. The sale was snbject to a 
prior mortgage for Rs.2,000. 
The appellant's application under Order XXI, Rule 90 for setting 
aside the sale was rejected by the executing court on the ground that the-
sale was not vitiated by fraud or irregularity. The appeal against the 
·order was dismissed by the Subordinate Judge. Before the appellate 
court the contention taken on behalf of the appellant was that the 
executing court ought to have sold only such portion of the land as 
would satisfy the decretal dues and the sale of the entire 10 acres was 
illegal and without authority. The court rejected that contention on the 
ground that it was a single piece of land and could not have been divided 
into parcels. The High Court also dismissed the revision. 
Allowing the appeal by special leave, 
c 
D 
E 
F 
I 
HELD: In all execution proceedings, the court has to first decide 
whether it is nei:essary to bring the entire attached property to sale or 
such portion thereof as may seem necessary to satisfy the decree. If the 
property is large and the decree to be satisfied is small, the court must 
G 
bring only such portion of the property to sale the proceeds of which 
would be sufficient to satisfy the claim of the decree holder. It is a 
mandate of the legislature which cannot be ignored. Any sale held 
without examining this aspect and not in conformity with this require-
ment would thus be illegal and without jurisdiction. [453H; 454A, H, BJ 
H 
451 
452 
SUPREME COURT REPORTS 
[1989] Supp. 1 S.C.R. 
A 
In the instant case, the amount claimed in the execution petition 
B 
c 
D 
was about Rs.2,400. To realize that amount the land measuring 10 acres 
was sold for Rs.17 ,000. The land is not indivisible. Nor division is 
impracticable or undei.irable. Out of 10 acres, the court could have 
conveniently demarcated a portion and sold it. [454E-F] 
The sale must, therefore,.be set aside being in contravention of the 
provision of Rule 64, Order XXI CPC. [454H] 
Takkasee/a Pedda Subba Reddy v. Pujari Padmavathamma & 
Ors., [1977] 3 SCC 337 at 340, referred to. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4195 
of 1989. 
From the Judgment and Order dated 16.2.1987 of the Andhra 
Pradesh High Court in C.R.P. No. 3750 of 1984. 
B. Kanta Rao for the Appellant. 
M.S. Ganesh for the Respondents. 
The Judgment of the Court was delivered by 
K. JAGANNATHA SHETTY, J. We grant special leave and pro-
ceed to dispose of the appeal. 
In cb.S. No. 821/1973, there was ex parte decree against .the 
appellant for payment of Rs.2,000 and cost. In execution of the 
f 
decree, the appellant's land S. No. 116 at Bayanguda village measur-
ing 10 acres was brought to Court sale. His small farm house was also 
located in the land. In the auction held the respondent purchased the 
land for Rs.17,000. The sale was subject to the prior mortgage for 
Rs.2,000 in favour of the Land-mortgage Bank Jangareddigudem. On 
31 May 1976 the sale was confirmed. On 26 July 1976, the appellant 
C} 
filed application under Order XXI Rule 90 for setting aside the sale. He 
impeached the auction sale broadly on three grounds namely: (i) that 
he was the owner of only one acre of land and the remaining 9 acres in 
the said survey number belonged to his father-Siddaiah, (ii) that the 
land was worth about Rs.70,000 but it was sold for a very low price of 
Rs.17,000 by fraudulent procedure followed by the authorities, and (iii) 
lt that he was not served with notice before attachment or sale. 
A. NARASAYYA v. M.S.RAO [SHE1TY, J.) 
453 
In support of the above allegations, the appellant entered the 
witness box as PW 2. He has also examined four other witnesses 
besides producing documentary evidence marked as Ex. A-1 to A-13. 
The auction purchaser in turn has examined three witnesses. 
A 
On appraisal of the evidence, t)le execu

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