Only such portion of property necessary to satisfy the decree could be sold

This Revision Petition is directed against the Order made in E.P.No.27/2005 in O.S.No.20/2004, ordering attachment of Petition mentioned property.

.2. In brief background facts are as follows :-

.Petitioners and Respondent are brothers. Respondent filed partition suit in O.S.No.109/1993 before Sub Court, Nagapattinam, which ended in compromise. Pursuant to the compromise, parties have entered into a Vardamanam dated 012. 1996, as per which, Respondent is to be paid Rs.6,00,000/- in lieu of his share. Since the amount of Rs.6,00,000/- was not paid for executing the terms of Vardamanam, Respondent filed O.S.No.487/2000 before Sub Court, Thiruvarur, which was decreed on 211. 2004.

3. As against the Judgment and Decree in O.S.No.20/2004, Petitioners have filed A.S.No.294/2005 before the High Court. In the appeal, the High Court has granted interim stay on condition that Judgment-Debtors should deposit a sum of Rs.3,00,000/-to the credit of O.S.No.20/2004 on the file of District Judge, Nagapattinam on or before 13.06.2005. That conditional Order was not complied with. To execute the Decree, Respondent filed E.P.No.27/2005. In the Execution Petition, Execution Court – District Court, Nagapattinam has ordered attachment of property – 452/840 share. Petition mentioned property is situated at Block No.43, Municipal Ward No.III, Depo Road, Mannargudi Town. Judgment-Debtors challenge the Order of attachment in this Revision Petition.

4. Assailing the impugned Order, the learned Counsel for the Petitioners submitted that when appeal is pending, Court need not proceed with the sale and under Or.41, R.6 CPC, the Execution Court may obtain security for due performance of the Decree. It was further submitted that the entire vast extent of property cannot be sold and as per Or.21 R.64 CPC, only such portion to satisfy the Decree shall be sold and Order of attachment of entire extent of property is inadmissible.

5. Supporting the Order of attachment, learned Senior Counsel Mr.Krishnaswamy has submitted that to pay the Decree amount, only 452/840 share has been ordered to be sold and when the share of the individuals is not identified, the Petitioners cannot raise the plea of excess execution. It was further submitted that Petitioners having not complied with the conditional Order passed by the High Court, cannot seek stay of the proceedings.

6. Admittedly, appeal A.S.No.294/2005 is pending in the High Court. Under Or.41 R.6(1) CPC, the Court which passed the Decree may call upon to furnish security, for the due performance of any Decree, which may be passed in the appeal. Laying emphasis upon Or.41 R.6(2) CPC, the learned Counsel for the Petitioners has contended that when appeal is pending, Execution Court is bound to stay sale, notwithstanding the fact that the High Court had granted interim Order and that has been vacated due to noncompliance. Placing reliance upon AIR 1964 Mysore 232 [Laxman Omana Muchandi Vs. Ramachandra Omana Muchandi], it was further contended that it was the duty of the Execution Court to call for furnishing of security and stay sale which had been ordered to be held. In the said decision, the Court has held as follows :-

"14. The correct view which in my opinion we should take is that once there is an appeal from the Decree and an Order is made for the sale of immovable property in execution of that Decree, the Court which has directed the sale is without any option but to Order the stay of the sale if the Judgment-Debtor asks for it. The only area in which the Court exercises its discretion is in the matter of the conditions which it may impose subject to which the sale could be stayed. Although the power exercisable in that area is plenary and full, there is no such power to refuse to stay the sale."

With due respect, I am unable to agree with the above observation. The above observation appears to be in contradiction to Or.41 R.5 CPC. Or.41. R.5 CPC stipulates "... appeal shall not operate as a stay