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Judgment
Bandaru Syamsunder, J
This Civil Revision Petition is filed by the petitioner/J.Dr-1 under Section 115 of Civil Procedure Code (in short 'CPC') against the orders passed by the learned Principal Senior Civil Judge, Srikakulam in E.P.No.50 of 2013 in O.S.No.111 of 2013 dated 08.12.2014 wherein and whereby learned Judge allowed the execution petition filed by the respondents 1 to 3/D.Hrs. and ordered for settlement of terms to proceed further in respect of execution petition schedule immovable property.
The execution petition is filed by the respondents 1 to 3/D.Hrs. under Order XXI Rule 64 and 66 CPC against the revision petitioner/J.Dr.1 for sale of mortgage schedule property belongs to late Ankaraboyina Pardha Saradhi, which is in the hands of revision petitioner/J.Dr. to realise decretal amount of Rs.5,02,444/-.
The case of the revision petitioner/J.Dr.1 in brief is that decree sought to be executed by the respondents 1 to 3/D.Hrs. is a mortgage decree against J.Drs.1 and 3, who are said to be succeeded mortgaged property from original mortgager late Mr. Ankaraboyina Pardha Saradhi. She submits that the mortgage property as shown in the mortgage deed is the western half of the ground floor of the terraced building without any specific measurements, which consists of three floors with same measurements and the said property is inseparable from the building wherein 5th respondent/3rd J.Dr. is having equal right with that of other J.Drs. due to that decree is un-executable. It is the contention of the revision petitioner/J.Dr.1 that property shown in the execution petition schedule is in excess of the property shown in the decree, due to that execution petition is not maintainable and no relief is sought in execution petition against J.Dr.3, which is liable to be dismissed. She further submits that she is the wife and respondents 4, 5/J.Dr.2, J.Dr.3 are daughters of late Ankaraboyina Pardha Saradhi and they became owners of immovable property after the demise of Mr. Ankaraboyina Pardha Saradhi and they are not the leniel descedents of Mr.Pardha Saradhi. Due to that no pious obligation for them to discharge ancestral debt borrowed by Mr. Ankaraboyina Pardha Saradhi, which is not liable for attachment and sale in execution of the decree. It is also the contention of revision petitioner/J.Dr.1 that total value of the entire building consisting of three floors is about 3 crores as the building is situated in the prime locality of the town, but respondents 1 to 3/D.Hrs. deflated the value suppressing the real value, filed execution petition and the value of the half of the western portion of the ground floor of the building is not less than 50 lakhs. She prays to dismiss the petition.
Before executing Court, respondent No.3/D.Hr.3 examined as P.W.1 and no documents were marked. On behalf of revision petitioner/J.Dr.1, she herself examined as R.W.1, Ex.B1 certified copy of mortgage deed dated 31.10.1996 marked in her evidence.
The executing Court after hearing both sides, allowed the execution petition filed by respondents 1 to 3/D.Hrs. by overruling the objections raised by the revision petitioner.
Aggrieved by orders passed by the executing Court, the present Civil Revision Petition is filed by the petitioner/J.Dr.1 stating that order of the Court below is erroneous, contrary to law and is a result of improper exercise of the jurisdiction vested in it. She also stated that the order of the Court below is opposed to the very spirit and object of provisions of Order XXI Rule 64 CPC and Court below ought to have seen that the suit schedule property is only half of the ground floor portion towards the western side of the entire building consisting of three floors, which value is nearly 3 crores which property put to sale for the meagre amount of Rs.5,02,444/- and not considered the objection raised by her in her counter. She prays to allow the revision petition and dismiss the execution petition.
I have heard learned counsel for the revision petitioner.
The learned counsel for the revision petitioner mainly contended that property, which intend to be sold in execution of mortgage decree is only half portion of the building situated on the western side and the entire building consisting of three floors, which is not severable. He submits that publication filed for entire property is not in consonence with Order XXI Rule 66 CPC. He argued that in pursuance of the interim orders passed by this Court, revision petitioner already deposited a sum of Rs.2,57,000/- and balance amount is very meagre, due to that property worth Rs.50,00,000/- which value admitted by P.W.1 in cross-examination cannot be sold in Court auction. He prays to dismiss the revision petition.
Now, the issue that emerges for consideration by this Court is: "Whether the order under challenge is sustainable, tenable and whether the same warrants any interference of this Court under Section 115 of CPC?"
POINT: Before going to the merits of the case, it would be beneficial to quote Order XXI Rule 64 and 66 CPC, which reads as under:
Order 21 Rule 64 C.P.C. reads thus:
“Power to order property attached to be sold and proceeds to be paid to person entitled:- Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same."
PROCLAMATION OF SALES BY PUBLIC AUCTION.
(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.
(2) Such proclamation shall be draw up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible-
(a) the property to be sold or, where a part of the property would be sufficient to satisfy the decree, such part;
(b) the revenue assessed upon the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;
(c) any encumbrance to which the property is liable;
(d) the amount for the recovery of which the sale is ordered; and
(e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property:
Provided that where notice of the date for settling the terms of the proclamation has been given to the judgement-debtor by means of an order under Rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs:
Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate if any, given, by either or both of the parties.
(3) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation.
(4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto.”
On perusal of above referred provision, which makes it clear that executing Court derives jurisdiction under the above said rules to sell properties attached or mortgaged only to the point at which decree is satisfied and no sale can be allowed beyond the decretal amount. The Court also has to verify whether the property is one and several items, Court has to see and sell only sufficient portion which is Courts obligation and not discretion. The learned counsel for the revision petitioner also relied on decision in AMBATI NARASAYYA v. M.SUBBA RAO AND ANOTHER AIR 1990 SC 119, wherein it is held that as per order XXI Rule 64 CPC, Court can sell not entire property but only such portion as would satisfy decree should be sold. In the said decision in execution of the decree, J.Drs. land of Ac.10.00 cents was brought to sale in Court auction for recovery of meagre amount of mortgage debt, due to that Hon'ble Apex Court held that executing Court sold the property without considering whether a portion of the land could have been sold to satisfy the decree. In the present case, there is no dispute with regard to obtaining mortgage decree by respondents 1 to 3/D.Hrs. Now, it would be beneficial to extract schedule shown in decree in O.S.No.111 of 2003 and also schedule shown in the execution petition which reads as under:
Schedule shown in decree:
“Terraced RCC daba building with apparent site situated on the northern row of Yenugumahal street, chowk ward in Srikakulam, town and mandalam Sub District, Municipality and district covered with T.S.No.350, Asst. No.3788 having door No.7-6-42 measuring East to West on south side 48 feet (14.80 Mts) on Northern side 44 feet (13.414 Mtws) and north-south on Eastern side 21 feet (6.40 Mts.) on western side 40 feet (12.20 Mts) totally 159 Sq.yards (132.945 Sq.Mts) with the following boundaries.
East
: Road
South
: Yenugumahal street road.
West
: Daba house and appurtenant site of M.G.Gandhi
North
: Municipal road.
½ portion from out of the above building situated on the western side only is covered under the suit mortgage deed.
Market value of Rs.5,00,000/-.”
Schedule filed by the D.Hrs.:
“Terraced RCC daba building with appurtenant site situated on the northern row of Yenugumahal street, chowk ward in Srikakulam, town and mandal and Sub District, Municipality and district covered with T.S.No.350, Assessment No.3788 having Door No.7-6-42 measuring East to West on south side 48 feet (14.80 Mts) on Northern side 44 feet (13.414 Mtws) and north to South on Eastern side 21 feet (6.40 Mts.) on Western side 40 feet (12.20 Mts) totally 159 Sq.yards (132.945 Sq.Mts) with in the following boundaries.
East
: Road
South
: Yenugumahal street road.
West
: Daba house and appurtenant site of M.G.Gandhi
North
: Municipal road.
½ of the portion from out of the above building situated on the western side only is covered under the suit mortgage deed.
Market value of Rs.5,00,000/-.”
On perusal of above referred schedules, there is no difference between the two and which are identical. Even in copy of publication, schedule is mentioned with specific measurement and same schedule wherein decree-holder value, amin value and value shown in basic value list maintained by Sub-Registrar Office also noted as per publication dated 12.01.2015. It is not the contention of revision petitioner that they have not succeeded E.P. schedule property from late Ankaraboyina Pardha Saradhi, who was original mortgager and she herself filed certified copy of mortgage deed dated 31.10.1996 marked as Ex.B1 before Court below. The revision petitioner also not explained why respondents 1 to 3/D.Hrs. not entitled to sell portion of the building, which is mortgaged property in realisation of mortgage debt though admitted in her evidence, property covered under Ex.B1 mortgage deed was purchased in the name of deceased Parthasaradhi and Ex.B1 executed by deceased Parthasaradhi in favour of respondents 1 to 3/D.Hrs. and the said property is not the ancestral property of her deceased husband. The executing Court after considering properties shown in the schedule of execution petition and also in the final decree as there is no dispute with regard to identity of the property ordered for sale of mortgaged property. It is also not the contention of revision petitioner that there is no necessity to sell entire mortgaged property in realisation of decretal amount and mortgaged property shown in the E.P. schedule can be sevarable and small portion of it can be sold. As per the contention of revision petitioner, the mortgaged property is portion of 3 floors building and there is no bar under law to sell the portion of the property to satisfy the mortgage debt due to the respondents 1 to 3/D.Hrs. The Court below had rightly observed that the preliminary decree and final decree were passed against the estate of deceased Parthasaradhi and the E.P. schedule property is liable for sale for realisation of decretal amount. This Court did not find any illegality or irregularity in the orders passed by the executing Court, which warrants interference by this Court under Section 115 of C.P.C.
In the result, the Civil Revision Petition is dismissed. No order as to costs. Consequently, miscellaneous petitions pending if any, shall stand closed.