P. Ramachandra Reddy and Another vs M. Raghunatha Reddy

Jagannadha Rao, J.—These revisions raise a question as to the procedure for sale under Order XXI Code of Civil procedure, in suit where there has been attachment before provisions of judgment. The question turns up an interpretation of the Order XXI Rule 54 (1-A), Rule 66, Order XXXVIII Rule 11 and Rule 11-A of Code of Civil procedure. The two revisions raise under the following circumstances.

Two suits O.S. No. 81/981 and O.S. No. 11/80 filed against the Petitioner ended in two money decrees. In the former suit the decree-holder filed E.P. No. 87/84 and in the latter E.P. No. 86/87. In both the suits, a house property was attached before judgment under Order XXXVIII Rule 5 and the said attachment became absolute on the date the decrees were passed. Thereafter, the decree-holder filed the two E. Ps for sale of the property. Notice was issued under Order XXI Rule 66 CPC to the judgment debtors and the same could not be served as they had gone out of station, on every one of the three occasions when the notices were issued.

Ultimately there was an order of the executing court by which the Judgment debtors were served by substituted service on 26.9.1986 by way of paper publication in a local newspaper. Though the E.P., was taken up on file, much earlier service under Order XXI Rule 66 Code of Civil procedure, could be effected by substitute service only on 29.9.1986. On the same day i.e., 26.9.1986 the judgment debtors were set ex-parte. Thereafter the judgment-debtor filed E. As. No. 252/86 and 253/86 for setting aside the orders setting them ex-parte. These E.As., were allowed on 23.2.1987. Thereafter time was granted for filing counter. Counters were filed on 9.3.1987 and the matter was posted for enquiry on 16.4.1987 and the objections raised by the judgment-debtors were over-ruled on 20.4.1987. Thereafter on 23.6.1987 the matter was posted for settlement of terms. It was at that stage the judgment-debtors filed two separate applications claiming that they are entitled to notice under Order XXI Rule 54(1-A) Code of Civil procedure, in view of the decision of this Court rendered in T.E. George v. Kulapaka Samba-murthy 1984 (2) ALT 19.

It may be noted that in the counters filed by the judgment-debtors, pursuant to the notice under Order XXI Rule 66 CPC after the ex-parte orders were set aside, they did not raise any question relating to special notice under Order XXI Rule 54(1-A) CPC In fact no representation was filed against the order of the Court, dated 20.4.1987 over ruling the objections. It is only much latter that the present question of notice under Order XXI Rule 54(1-A) has been raised.

In my Judgment in T.E. George''s case, (1 supra)I held that in proceedings for sale, the judgment-debtors are entitled to notice under Order XXI Rule 54 (1-A). It is necessary to refer to Order XXI Rule 54 Code of Civil procedure, which reads as follows:

(1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.

(1-A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for setting the terms of the proclamation of sale.

(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary, mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court-house and also, where the property is land paying revenue to the Government in the office of the Collector of the district in which the land is situate and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village.

From a reading of the above provisions, it is clear that even at the stage of attachment of immovable property, the Code as amended in 1976 requires that the judgment-debtors should be given notice to attend the Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale. That case was one where there was no attachment before judgment as in the present cases before me. While Mr. M.V. Suresh Kumar, learned Counsel for the Petitioners contended that the procedure under Order XXI Rule 54(1-A) Code of Civil procedure, is to be followed even where there was attachment before judgment, it is the contention of Mr. P. Sridhara Reddy, appearing for Mr. P. Krishnareddy, that the said provisions are not attracted to cases of attachment before judgment.

I am of the view that the contention raised by the learned Counsel for the Petitioners is not correct and the objection raised by the learned Counsel for the Respondent is to be up-held. It may be noted that whenever there is attachment before judgment under Order XXXVIII Rule 5 Code of Civil procedure, there is no question of reattaching the property at the stage of execution in view of the specific provisions of Order XXXVIII Rule 11 CPC That provision states clearly, that where property is under attachment by virtue of the provision of Order XXXVIII Code of Civil procedure, and a decree is subsequently passed in favour of the Plaintiff, it shall not be necessary upon an application for execution of such decree to apply for re-attachment of the property. In the context it is also necessary to refer to the provisions under Rule 11-A of Order XXXVIII which read as follows:

11-A. (1) The provisions of this Code applicable to an attachment made in execution of a decree shall, so far as may be, apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of Rule 11.

(2) An attachment made before judgment in a suit which is dismissed for default shall, not become revived merely by reason of the fact that the order for the dismissal of the suit for default has been set aside and the suit has been restored.

From a reading of the above said provisions, it is clear that the provisions of the Code applicable to attachment made in execution of a decree are applicable to attachment before judgment only "so far as it may be." Bearing the above provisions in mind, if we consider Order XXI Rule 54(1-A) CPC it will be seen that in cases where there is attachment before judgment, there is no question of giving notice for setting the terms of the proclamation of sale at the stage of attachment before judgment. It is not known at that stage whether the suit will end in a decree or whether the suit will be dismissed. If indeed the suit is ultimately liable to be dismissed there is no question of giving notice to the judgment-debtor with regard to the terms of proclamation of sale under Order XXI Rule 54(1-A) Code of Civil procedure, for that would result in unnecessary waste of time. I am therefore, clearly of the view that the procedure laid down by me in T.E. George''s case (I supra) is not attracted to cases where there is" attachment before judgment. In this class of cases once there is attachment before judgment, there is no question of any re-attachment at the stage of execution in view of the provisions of Order XXXVIII Rule 11 Code of Civil procedure, and at that stage there is no question of going back to the provisions of Order XXI Rule 54(1-A) CPC The objection raised by the judgment-debtor is accordingly over-ruled and the execution has to be proceeded with.

However, it is pointed out that during the pendency of the execution proceedings, the Petitioners have paid about Rs. 12,000/- and that they have also paid some further amounts. Having regarding to these circumstances, I am inclined to direct the lower court to include the judgment-debtor''s valuation also in the sale proclamation. Strictly speaking, if the judgment-debtors has not availed of the benefit of notice under Order XXI Rule 66 Code of Civil procedure, the judgment-debtors are not entitled to have their valuation noted in the sale proclamation. The second proviso to Order XXI Rule 66(2) Code of Civil procedure, is clear that the duty to incorporate the estimate of the judgment-debtors or of the decree-holders arises only if they have availed of the opportunity to furnish their estimate. But, in view of the fact that the Petitioners have deposited various amounts during the execution stage, as well as pending this revision, I am inclined to give a direction to the lower court to incorporate the valuation of the judgment-debtors also in the sale proclamation. According to the judgment-debtors the value of the building is Rs. 5,00,000/- while according to the decree-holder the value is only Rs. 1,00,000/-. After the matter is taken up in the lower court, the Court will fix a reasonable time to the Petitioners to submit their valuation.

For the aforesaid reasons, these revisions are dismissed, subject to the direction given above. No costs.