Sale of land in court auction for debt of Rs.9000/- held illegal.

1. This revision is filed by the legal heirs of the judgment- debtor in O.S.No.104 of 1981, on the file of District Munsifs Court, Perambalur.

2. The material averments may be summarised as follows:

The original defendant Andi Padayachi is the judgment-debtor in the case. First respondent herein filed a suit and obtained simple money decree against the defendant. In execution of the decree, property belonging to deceased defendant was attached for realisation of the decree amount on 27.11.1982. The decree amount payable as per the Execution Petition was below Rs. 9,000. For realising this amount, 6 acres of land with various trees and a well were brought to sale. It is the case of the defendant that there was no proper proclamation for sale and he was also not given prior notice before settlement of proclamation.

3. Originally the upset price was fixed at Rs.40,000 and the entire property was brought to sale. The sale was posted on 1.2.1984. On that date, the sale did not take place for want of bidders. Immediately thereafter, first respondent/decree-holder filed an application to reduce the upset price. Case of the defendant is that he has not been served with any notice. But the lower court has found that notice was attempted to he served on him, but it was refused. The upset price was reduced from Rs.40,000 to Rs.30,000, and the property was advertised for sale. The sale was posted to 25.4.1984. On that date, the sale took place and second respondent herein purchased four acres of property for Rs.30,010. Out of six acres, four acres were sold for Rs.30,010, when the amount to be realised as per the decree was below Rs.9,000.Few days after the sale, the second respondent sold the property to respondents 3 to 6, who are none other than the children of the decree-holder. It is the case of the petitioner (deceased defendant) that the auction purchaser was really a benami for the decree-holder, and the subsequent conduct of selling the property to respondents 3 to 6 is ample proof for the same. Thereafter, the defendant was also evicted from the property.

4. This application E.A.No.302 of 1985 is filed by defendants widow and children, questioning the validity of the sale.

5. Serious objection was filed by the decree-holder, auction purchaser and purchasers of property from the auction purchaser. Ail of them contend that all the proceedings were taken in accordance with law. In regard to the petitioners contention that for recovery of Rs.9,000, four acres of property was sold for Rs.30,000, the respondents would contend that the property could be sold only as one block, and, therefore, there is no illegality.

6. The Executing Court took evidence in the case and came to the conclusion that the application is barred by limitation. If further held that the application ought to have been filed under O.21, Rule 30, C.P.C. and not under Sec.47, C.P.C. It was further held that no illegality or irregularity was committed, and everything was done procedurally and in accordance with law, and that too with notice or knowledge of the judgment debtor. It is against the said order, this revision is filed.

7. On going through the evidence, regarding the irregularities committed for attachment, settlement of proclamation, etc., 1 do not think that I should interfere in revision, for, the same is based on evidence only. But I find great force in the contention of the petitioners herein that a clear mandate of law has been violated in this case. Under O.21, Rule 64, C.P.C, a duty is cast on court to sell only such portion of the property as may be necessary to satisfy the decree. O.21, Rule 64, C.P.C. reads thus:

“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.” In this