BALAKRISHNAN versus MALAIYANDI KONAR

Citation: [2006] 2 S.C.R. 363 · Decided: 17-02-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed
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Judgment (excerpt)

' 
BALAKRISHNAN 
A 
v. 
MALAIYANDI KONAR 
FEBRUARY 17, 2006 
[ARIJIT PASAYAT AND R.V. RAVEENDRAN, JJ.] 
B 
1 
_; 
Code of Civil Procedure, 1908-0rder XX! Rule 64: 
Limitation Act, 1963-Article 134: 
c 
Purchase of property of judgment debtor by decree holder in court 
auction in pursuance of execution of decree-Confirmation of sale-In one 
round of litigation upto High court order of sale not interfered with-Petition 
· for delivery of possession by decree holder-Objected to as being beyond 
limitation-Order for delivery by trial court-In revision, High Court holding D 
the sale to be illegal considering applicability of Order XX! Rule 64 and 
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remission of case to trial court for considering validity of sale-On appeal, 
~ 
Held: High Court could not have considered question of applicability of Order 
XX! Rule 64-But the petition for delivery of possession was not maintainable 
having been filed beyond limitation period-Hence matter remitted to trial 
E 
court for considering maintainability of the application and not for considering 
validity of sale. 
Order XX! Rule 64-Sale in execution proceedings-Requirement of 
compliance of the provision-Held: The procedural compliance of Order XX! 
Rule 64 is mandatory requirement-A sale held without examining this aspect F 
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would be illegal and without jurisdiction. 
Article 134-Limitationforfiling application for delivery of possession-
Held: Limitation for the purpose of Article 134 starts from the date of the sale 
becoming absolute i.e. the date of confirmation of sale-On failure to avail 
the remedy within limitation, law relegates to the remedy of regular suit for G 
possession based on title, subject to limitation. 
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Suit filed by appellant against respondent was decreed. In the 
execution proceedings appellant-decree holder purchased the property of 
respondent-judgment debtor in court auction. Sale was also confirmed. 
363 
H 
t 
364 
SUPREME COLIRT REPORTS 
120061 2 S.C.R. 
A Judgment debtor's application to set aside the sale in view of Tamil Nadu 
Debt Relief Act, 1980 was dismissed. His Revision Petition was also 
• 
dismissed. When the decree holder filed application for delivery of 
possession, judgment debtor objected to the same on the ground of its being 
beyond limitation. Trial Court ordered delivery. The Revision Petition filed 
B by the judgment debtor was allowed holding that the auction sale and its 
confirmation was illegal in view of order XXI Rule 64 CPC and hence 
remitted the matter to Executing Court to consider the objection. Hence 
the present appeal. 
Dismissing the appeal, the Court 
C 
HELD: I. Use of the expression "necessary to satisfy the decree" in 
Order XXI Rule 64 CPC clearly indicates the legislative intent that no sale 
can be allowed beyond the decretal amount mentioned in the sale 
proclamation. In all execution proceedings, Court has to first decide 
whether it is necessary to bring the entire property to sale or such portion 
D 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 bring only such 
portion of the property, the proceeds of which would be sufficient to satisfy 
the claim of the decree holder. It is immaterial whether the property is 
one or several. Even if the property is one, if a separate portion could be 
sold without violating any provision of law only such portion of the 
E property should be sold. This is not just a discretion but an obligation 
imposed on the Court. The procedural compliance of Order XXI Rule 64 
of the Code is a mandatory requirement. The sale held without examining 
this aspect and not in conformity with this mandatory requirement would 
be illegal and without jurisdio:tion. The duty cast upon the Court to put 
F to sale only such portion or portion thereof as is necessary to satisfy the 
decree is a mandate of the legislature which cannot be ignored. In the facts 
of the present case the auction sale did not meet the requirements of law. 
(368-G-H, 369-A, B, D( 
Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma, AIR (1977) 
G SC 1789; Ambati Narasayya v. M Subba Rao and Anr., (1989) Suppl. 2 SCC 
693; S. Mariyappa (Dead) by LRs. and Ors. v. Siddappa and Anr., (2005) 10 
SCC 235; S.S. Dayananda v. KS. Nagesh Rao and Ors., 11997( 4 SCC 451 
and Desh Bandhu Gupta v. NL. Anand and Rajinder Singh, (1994J 1 SCC 
131, relied on. 
H 
2.1. The limitation for the purpose of Article 134 of Limitation Act,
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