A Court executing a decree can only sell such portion of the property attached as may seem necessary to satisfy the decree and no sale can be allowed beyond the decretal amount.

ORDER :

1. This civil revision petition is filed by the petitioners/Judgment debtors under Section 115 of the Code of Civil Procedure (in short “CPC”) against the Orders passed by the learned Junior Civil Judge, Atmakur in E.A. No. 154 of 2007 in E.P. No. 85 of 2003 in O.S. No. 140 of 2001, dated 09.06.2010.

2. The case of the petitioners before the Executing Court in brief is that the respondent filed E.P. No. 85 of 2003 against them to execute the decree in O.S. No. 140 of 2001 for realization of decretal amount of Rs. 30,854/- only and brought E.P. schedule property for sale, which is wet land cultivated under K.C.canal water by raising two crops a year. They submit that the E.P. schedule land is to an extent of Ac. 5.00, worth Rs. 50,000/- per acre, but the respondent purposely undervalued the land and shown its market value as Rs. 1,00,000/- and the Court Amin valued the E.P. schedule land for Rs. 2,00,000/- but at the time of settlement of terms, the Court has not taken into consideration the decree amount and extent of the property to be sold and put the entire property for sale, which is knocked down by the respondent/decree holder for partly sum of Rs. 2,04,000/- only, which also confirmed by the Court and then the respondent took possession of the property through process of the Court. It is the contention of the petitioners that they came to know about the sale of their property in Court auction when the respondent entered the land and they made enquiries and they also placed the matter before the elders, wherein they offered to pay the entire decretal amount, which was also advised by the elders, but refused by the respondent and thereafter they made representation before the Lok Adalat to settle the dispute amicably, wherein the respondent not turned up, though received notice. The main contention of the petitioners is that instead of selling the property to the extent which is necessary to realize the decree amount of Rs. 32,615/- the Court below ordered sale of entire Ac. 5.00 of land, which knocked down by the respondent for partly amount of Rs. 2,04,900/- which caused substantial loss to them, as they have no other property, except the E.P. schedule property, which sale is not valid, which is conducted in violation of mandatory provisions. They pray to set aside the sale held on 06.10.2004, which confirmed on 19.01.2005 and restore the possession of the petition schedule land to them.

3. The respondent filed counter before the trial Court, denying the averments in the petition filed by the petitioners, stating that it is false to say that Ac. 5.00 of land is worth Rs. 5,00,000/- and the Court Amin also valued the land at Rs. 2,00,000/-. He submits that the E.P. schedule property, which is sold in the Court auction is one plot and the entire plot was put to public auction, as Court cannot divide the land and put such portion of that land in public auction, which rightly done by the Executing Court. It is also the contention of the respondent that attachment of property was made before Judgment and the petitioners engaged an Advocate in the suit as well as Execution petition, but not raised any objection at any stage, but filed petition only after confirmation of the sale and they have not deposited the decretal amount to set aside the sale. He prays to dismiss the petition.

4. Before the trial Court, the petitioners examined PW-1, PW-2 and got marked Exs.A1, A2. On behalf of the respondent, RWs. 1 to 4 were examined. Exs.B1 to B3 were marked.

5. After hearing both sides, the Executing Court dismissed the petition filed by the petitioners, on the ground that the petitioners failed to file petition under Order XXI, Rule 89 or 90 of CPC, within the stipulated time and sale was conducted as per rules. It appears that the Court below considered the petition filed by the petitioners, as if they sought for declaration.

6. At the first instance, the petitioners aggrieved by the Orders by the Executing Court filed Civil Misce