R.178 of the Madras Civil Rules of Practice cannot deprive the court of its power to enforce execution of a decree completely and is inconsistent with S.51, CPC. It is found to be ultra vires in the context of decrees under 0.21, R.53 (4), CPC.

Headnote:
attachment - execution - S.51, CPC, S.60, CPC, 0.21, R.53 - The court discussed the applicability of R.178 of the Madras Civil Rules of Practice in prohibiting the sale of a decree in execution of another decree. It held that R.178 cannot deprive the court of its power to enforce execution of a decree completely and is inconsistent with S.51, CPC. The court found R.178 to be ultra vires in the context of decrees under 0.21, R.53 (4), CPC.
Fact of the Case:

The decree-holder sought to attach and sell the interest of the judgment-debtor in a decree pending in the same court. The appellants contended that the decree cannot be sold in execution of another decree based on R.178 of the Madras Civil Rules of Practice.
Finding of the Court:

The court held that R.178 cannot deprive the court of its power to enforce execution of a decree completely and is inconsistent with S.51, CPC. It found R.178 to be ultra vires in the context of decrees under 0.21, R.53 (4), CPC.
Issues: The main issue was the applicability of R.178 of the Madras Civil Rules of Practice in prohibiting the sale of a decree in execution of another decree.
Ratio Decidendi: The court reasoned that R.178 cannot deprive the court of its power to enforce execution of a decree completely and is inconsistent with S.51, CPC. It found R.178 to be ultra vires in the context of decrees under 0.21, R.53 (4), CPC.
Final Decision: The second appeal was dismissed, and the court held that R.178 of the Madras Civil Rules of Practice is ultra vires in the context of decrees under 0.21, R.53 (4), CPC.

Judgement Key Points

Key Points: - The court held that R.178 cannot deprive the court of its power to enforce execution of a decree completely and is inconsistent with S.51 CPC (!) (!) . - R.178 was found ultra vires in the context of decrees under 0.21, R.53 (4) CPC (!) (!) . - The second appeal was dismissed, upholding that R.178 is ultra vires in the context described (!) . - S.51 CPC enables execution by attachment and sale or sale without attachment, with conditions and limitations as prescribed; the High Court may prescribe rules under S.122 CPC (!) (!) (!) (!) . - The rule R.178 prohibits sale of such decrees but does not prevent attachment; the attaching decreeholder may still execute under other provisions when applicable (!) (!) .

What is the validity of R.178 of the Madras Civil Rules of Practice in prohibiting the sale of a decree in execution of another decree?

What is the relationship between S.51 CPC and S.60 CPC regarding attachment and sale of decrees under 0.21, R.53 (4) CPC?

What is the ruling on whether R.178 is ultra vires in the context of decrees under 0.21, R.53 (4) CPC?

Judgment :-

1. The matter arises in execution.

2. The decree-holder in O.S. 7 of 1946 on the file of the Principal Subordinate Judge's Court, Ottapalam, who is represented by the first respondent sought to attach and sell the interest of his judgment-debtor in the decree in O. S.21 of 1946 pending in the same court. In pursuance to E. P. 83 of 1961 the decree in O. S.21 of 1946 was attached. The appellants who are the legal representatives of the judgment-debtor contended in reply to the notice issued under 0.21, R.66, C. P. C. that in view of R.178 of the Madras Civil Rules of Practice the decree in O. S.21 of 1946 cannot be sold in execution of another decree. The learned Subordinate Judge overruled the objection and his decision was confirmed in appeal by the District Judge. The second appeal is filed against the decrees of the courts below.

The decree in O. S.21 of 1946 is a preliminary decree for partition wherein the judgment-debtor in O. S.7 of 1946 has been allotted a share. The question is whether it is open to the decree-holder to sell the interest of the judgment-debtor covered by this decree in auction. R.178 of the Madras Civil Rules of Practice which corresponds to R.287 of the Travancore-Cochin Civil Rules of Practice reads:

"No decree shall be ordered to be sold in execution of another decree." The rule only prohibits the sale of a decree in execution of another decree and does not prevent its attachment. The submission for the appellant was that after attachment the decree cannot be sold in view of the above rule.

4. S.51, CPC. enumerates the various modes in which the court may order the execution of a decree; clause (b) enables the court to enforce execution by attachment and sale or by sale without attachment of any property. The power of court to enforce execution under S.51, CPC. is subject to such conditions and limitations as may be prescribed by rules. S.60, "CPC. enumerates the property which is liable to attachment and sale is execution of a decree. Though decrees are not specifically referred to in S.60 (1) of the CPC. they will be taken in by the clause "all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit". In view of S.51 and 60 decrees are liable to be attached and sold in execution of another decree. 0.21, R.53, CPC. deals with attachment of decrees. 0.21, R.53 (1) provides for attachment of decrees either for payment of money or for sale in enforcement of a mortgage or charge. 0.21, R.53 (4) relates to decrees other than those mentioned in sub-rule (I). O.21, R.53 sub-rules (2) and (3)' enable the holder of a decree who has attached another decree of the nature specified in sub-rule (1) to execute the attached decree in the same manner as the holder thereof. 0.21. R.53 (2) declares the attaching decreeholder as the representative of the holder of the attached decree. But there is no such provision in the Code for execution of decrees of the nature specified in 0.21, R.53, sub-rule (4). If in view of R.178 of the Madras Civil Rules of Practice such decrees cannot be sold in execution, what is the remedy of the attaching decreeholder. The preliminary decree for partition which has been attached in the case before us is not executable. It is not possible to hold in view of S.60, CPC. that such decrees are not attachable. The attachment of such decrees has only to be under 0.21, R.53(4), CPC. But the rule is silent as to how the fruits of the decree have to be realised after attachment. Such decrees have therefore to be sold in court auction as they are 'other saleable property of the judgment-debtor' under S.60 (1), CPC. Counsel for the appellants did not demur to these propositions but according to him decrees coming under 0.21, R.53 (4) cannot be sold in court auction in view of R.178 of the Madras Civil Rules of Practice. The plea on behalf of the respondents i

Click Here to Read the rest of this document