ORAL JUDGMENT

Heard the arguments addressed by the learned counsels appearing for the respective parties and perused the material placed on record.

2. The decree holder/plaintiff has challenged the judgment and decree dated 14.12.2012, passed in R.A.No.15/2012, by the Additional Senior Civil Judge and JMFC, Hospete (First Appellate Court), and the order dated 22.02.2012, passed in Execution Case No.14/1998, by the Civil Judge and JMFC, Hagaribommanahalli (Executing Court).

3. For the purpose of convenience, ranking of the parties is referred to as per their status before the Executing Court.

4. The father of J.Dr.No.11 has borrowed loan of Rs.25,000/- from the decree holder and he has not repaid the amount. Therefore the decree holder filed a suit for recovery of money and the said suit came to be decreed. During the pendency of the suit, the decree holder had obtained order of attachment before the judgment and the said order was made absolute by the trial Court at the time of decreeing the suit. The said decree has become final. Thereafter the decree holder has initiated Execution Case No.9/1994 which was renumbered as Execution Case No.14/1998. At that time J.Dr.No.11 was a minor. The Executing Court by order dated 11.03.1997 has passed order as follows:

“Issue sale warrant and sale proclamation through court publication in newspaper having larger circulation in the area if PF paid by sale at spot on 27.5.97 and sale at Court on 4.6.97 and to submit publication by 11.4.97.”

5. Thereafterwards J.Dr.No.11 has moved application I.A.No.6 invoking the provisions under Order 21 Rule 58, 69 and 90 read with section 151 of CPC for safeguarding interest of the minor J.Dr.No.11 to the extent of his share in the property by setting aside the sale order dated 11.03.1997. Subsequently a memo is filed confining I.A.No.6 only so far as it is filed under Order 21 Rule 58 read with section 151 of CPC. The Executing Court after considering the application available on record has allowed I.A.No.6. It is convenient to refer the order passed by the Executing Court by extracting the operative portion of the same, which is as under:

The application filed on behalf of the JDR No.11 U/Or XXI Rules 58, 69 and 90 R/W.

Sec.151 of CPC as I.A.No.VI is hereby allowed.

The sale orders passed by the court on

11.3.1997 is hereby set aside till the interest of JDR No.11 is safeguarded to the extent of his share.

No order in respect of costs.

6. The said order was challenged in R.A.No.15.2012, before the First Appellate Court and the First Appellate Court has dismissed the said appeal filed by the decree holder. 7. Both the Executing Court and the First Appellate Court have concurrently opined that J.Dr.No.11 was minor and the decreetal amount is Rs.25,000/- and along with interest the said amount has become Rs.31,950/- and for satisfaction of this decreetal amount putting the entire property to the extent of 08 acres 62 cents for sale is not correct. Further opined that the executing Court before passing the order on 11.03.1997 by putting the entire land into sale ought to have enquired as per Order 21 Rule 58 of CPC whether is it necessary to sell only a portion of the land in order to meet the sufficiency of decreetal amount or sale of entire property is necessary. But without doing so, the order for sale of entire extent of land to the extent of 08 acres 62 cents is not correct. Therefore the sale order dated

11.03.1997 is set aside which is concurrently affirmed by the First Appellate Court.

8. This Court on 17.09.2013 has framed the following substantial question of law.

“Whether both the Courts below were justified in setting aside the sale of entire 8 acres 62 cents of land to consider 1/11th alleged share of applicant in I.A.VI, when admittedly the sale is through court auction dated 11.3.1997 for satisfying the decree passed in a suit for recovery against his father late P.Shivappa?”

9. The learned counsel for the appellant/decree holder submitted that the effect