' FAISAL ARAB, J.---The present execution application arises from a decree passed in Banking Suit No,B-196 of 2000. The decree-holder seeks recovery of the decretal amount of Rs,41,462,802. Vide order dated 23-12-2008 this execution application was allowed and the Nazir of this Court was directed to attach the mortgaged properties and then sell them through public auction in order to realize the decretal amount. On the date of the auction i.e, 11-5-2009 only one bidder came forward and tendered his offer of Rs,175 million for the entire project of judgment-debtor No,1 i.e, land, building and plant and machinery equipment and other assets and a deposit of 25% of the bid amount was also made with the Nazir. Then through an urgent hearing application bearing C.M.A.
No,583 of 2009 the auction-purchaser sought confirmation of sale in his favour. This application was fixed in Court on 2-6-2009 and that very day when only urgent application was listed for hearing, the sale was confirmed in favour of the auction purchaser. The judgment-debtor challenged the order dated 2-6-2009 in High Court Appeal bearing No,181 of 2009 on the ground that it was passed while taking up urgent application moved by the auction-purchaser without affording any opportunity of hearing to the judgment-debtors and the same being violative the principles of natural justice be set aside.
2. On 16-6-2009 High Court appeal came up for hearing before Division Bench. The counsel for the decree-holder as well as the auction-purchaser frankly conceded to the legal position that order dated 2-6-2009 was passed without giving the opportunity of hearing to the judgment debtors and agreed that the Division Bench may set aside the order dated 2-6-2009 and direct the parties to appear before the Single Judge on 19-6-2009. On the basis of such joint statements of the counsel for all the parties including the auction purchaser the order dated 2-6-2009 was set aside by the Division Bench and all pending applications were directed to be disposed of before taking up the matter for confirmation of sale.
3. On 19-6-2009 the learned Single Judge directed that all pending applications be fixed for hearing on 30-6-2009. On this date the case could not proceed and was adjourned to 2-7-2009 on which date it transpired that some of the pending applications had become infructuous and were therefore dismissed as such. On 24-12-2009 when the remaining applications bearing C.M.A.
Nos.448, 521, 661 and 663 all of 2009 came up for hearing. The counsel for the decree holder, the judgment debtors and the auction-purchaser appeared and stated that all pending applications be disposed of simultaneously. In support of their respective contentions, they filed written arguments and thereafter the matter was reserved for orders.
4. All pending applications are being disposed of through this common order.
5. In C.M.A. No,448 of 2009 that was filed on 29-4-2009, the judgment debtors have taken the plea that no notice under Order XXI, Rule 66 was served upon them, no decretal amount was mentioned in the advertisement that was published for sale of the mortgaged assets and value of the assets that are being put to sale was also not mentioned.
6. C.M.A. No,521 of 2009 was filed on 20-5-2009. Wherein the decree holder sought appointment of security guards at the Sugar Mills in order to secure the fixtures and fittings, plant and machinery and other equipment as according to the decree-holder, the judgment-debtors were attempting to dispose them of in order to defeat the recovery of the decretal amount.
7. C.M.A. No, 615 of 2009 was filed by the decree-holder on 6-6-2009 seeking direction to the Nazir to take over possession of the mills and prepare an inventory as the judgment-debtors have attempted to remove certain machineries and valuables but the guards of the decree holder, posted at the mills prevented them from doing so.
8. C.M.A. No,661 of 2009 was filed by the judgment-debtor on 18-6-2009 seeking postponement of the sale and grant of reasonable time to enable the judgment debtors to raise the decretal amount.
9. C.M.A. No,663 of 2009 was filed by the judgment-debtors on 18-6-2009 seeking postponement of the sale as according to them proceeds from the sale of certain machineries only would be sufficient to satisfy the decree.
10. The counsel for the decree-holder has opposed the applications filed by the judgment- debtors on the ground that any objection to the execution proceedings can be entertained by executing Court only after the judgment-debtors have deposited in Court the decretal amount as envisaged under Order XXI, Rule 23A of Civil Procedure Code.
11. The judgment debtors have moved two applications bearing C.M.As. Nos.661 and 663 of 2009 both under Order XXI, Rule 83 of Civil Procedure Code.
12. Applications that were moved by the judgment debtors cannot be equated with the objections as envisaged under Order XXI, Rule 23A of Civil Procedure Code. Order XXI, Rule 83 of Civil Procedure Code only facilitates and enables the judgment-debtor to satisfy the decree in various manners mentioned therein. Sub-rule (1) of Order XXI, Rule 83 entitles the judgment-debtor to seek postponement of sale of any property mentioned in the proclamation of sale if he satisfies the Court that there are reasons to believe that decree could be satisfied through mortgage, or lease or private sale of any of his property or part thereof on such terms and for such period as it thinks proper to enable the judgment-debtor to raise decretal amount. Hence very object of Order XXI, Rule 83 of Civil Procedure Code is to allow a judgment-debtor to satisfy the decree in any of the modes provided in the said rule which may suit him provided always that he satisfies the executing Court that there are reasons to believe that judgment-debtor would raise the amount by adopting such mode. Thus, the provisions of Order XXI, Rule 83 themselves provide for recovery of decretal amount and cannot be equated with the objections as envisaged under Order XXI, rule 23A.
Therefore, when a judgment-debtor is only seeking postponement or adjournment of sale on any reasonable ground or is asking the Court to sell a particular asset and not all, then such request should not be regarded as an objection within the meaning of Order XXI, Rule 23A, C.P.C. For which the entire decretal amount is required to be first deposited in Court. The word objection as envisaged under Order XXI, Rule 23A C.P.C. Means to dispute the very right of the decree holder to get the decree executed. In other words raising objection under Order XXI, Rule 23A, C.P.C. Means putting up resistance to the execution proceedings itself, which is not the object in the two applications. In these two applications, the judgment-debtors only seek some time to satisfy the decree and also want that decree be satisfied from the sale of certain assets only. Such a request cannot be termed as an objection to the execution proceedings within the meaning of Order XXI, Rule 23A, C.P.C. And no deposit of decretal amount is required from the judgment debtors.
13. In the present case a sum of 42 million rupees are required to be recovered to satisfy the decree whereas an offer of 175 million was received for sale of entire sugar mills that includes its land, building, plant and machinery, equipment and other assets. No doubt to effect recovery of decretal amount, the decree-holder is well within his rights to procure an order for sale of mortgaged assets through auction proceedings but where sale proceeds of any part of the mortgaged or charged assets put to sale are sufficient enough to cover the decretal amount, then all assets of the judgment-debtor should not be put to sale.
The sale of assets should not be disproportionate to the object of execution proceedings i.e, the discharge of the obligation under the decree. A judgment debtor would be well within his right to oppose sale that is excessive i.e, disproportionate to the amount sought to be recovered. The executing Court must ensure that recovery is made from sale of such assets only proceeds of which would be sufficient to discharge the obligation of the judgment-debtor under the decree. In order to recover the decretal amount, there could be several mortgaged or charged assets available for sale but this does not mean that all such assets in there entirety should be put to sale.
At the request of the judgment-debtor, the executing Court must first satisfy itself that sale proceeds of any particular asset or a set of assets out of several assets would be sufficient to discharge judgment-debtor's obligation under the decree. Merely because offers for sale of all assets were invited it does not mean that executing Court must confirm their sale in there entirety.
Where the offer is many times the amount sought to be recovered and partial sale would generate sufficient amount to cover the decretal amount then the executing Court must stay its hands from selling all assets of the judgment debtor. Thus where there are reasons to believe that sale of only one or a set of assets would fetch sufficient amount to cover the decretal amount then in the first instance only such assets should be sold. As the extent of the sale of judgment-debtor's assets has to be proportionate to the amount sought to be recovered it is for this reason Order XXI, Rule 55 of Civil Procedure Code envisages that upon satisfaction of the decree, the order of attachment of judgment debtor's assets that may have been passed to effect recovery stands automatically discharged. In other words, the recovery of the decretal amount immediately extinguishes the decree and other attached or mortgaged or charged assets stand released / redeemed.
Therefore, the executing Court must keep this object before it and any reasonable request for partial sale of mortgaged or charged assets, which is not intended to obfuscate the execution proceedings or is not intended to unnecessarily cause delay, should be considered by the executing Court. Whether such a request is reasonable or not, it is for the executing Court to decide, keeping in view the circumstances in which request for partial sale or postponement or adjournment of sale is made.
14. Though sub-rule (3) of Rule 83 of Order XXI, of Civil Procedure Code provides that nothing in Rule 83 shall apply to sale of property directed to be sold in execution of a decree which is mortgaged or on which the decree-holder holds a charge but this does not mean that the executing Court shall provide no opportunity to judgment debtor to settle the decretal amount before the mortgaged or charged assets are put to sale or generate funds from the sale of only such mortgaged assets, proceeds of which would be sufficient to satisfy the decree. The basic object of this sub-rule is that where the decree provides for recovery of the decretal amount from the sale of charged or mortgaged assets then the request of the judgment-debtor to get the recovery effected from some other property of the judgment debtor shall not be considered. Nothing beyond this.
15. In the present case a sum of 42 million rupees are required to be recovered and the value of entire worth of the mills is well above 4 times of the decretal amount i.e, more than 175 million rupees. In this background, the judgment debtors were well within their rights to ask the Court to sell only part of the assets, sale proceeds of which would be sufficient to satisfy the entire decretal amount. After going through the applications filed by the judgment-debtors this Court finds that an opportunity to raise decretal amount through partial sale of mortgaged or charged assets be granted as there is overwhelming possibility that partial sale would be sufficient to cover the decretal amount and the need to sell the entire mills inclusive of land and building may not arise.
16. Keeping in view the worth of the mills and the amount that is required to be recovered, C.M.A.
No,663 of 2009 is allowed. In the first instance proclamation of sale in respect of plant and machinery of the mills as well as other assets those are movables shall be issued. Separate bid for certain items of plant and machinery that are to be mentioned to the Nazir by the judgment- debtor No,1 are also to be invited. If the offers for the sale of any of the above referred two sets of assets are not sufficient enough to cover the decretal amount and still there remains a shortfall in the decretal amount and the judgment debtors are unable to make up for the deficiency, only then fresh order for issuance of proclamation of sale for the land and building of the judgment-debtor No,1 shall be made. Needless to mention that before any offer of plant and machinery, equipment and other movable assets of judgment debtor No,1 is accepted by the Nazir, if the judgment- debtors deposit the decretal amount in Court in terms of the decree, then the decree would stand satisfied and the order of attachment and takeover of the mills shall stand withdrawn in terms of Order XXI, Rule 55 of Civil Procedure Code. In so far as C.M.A. 662 of 2009 is concerned, sufficient time has already elapsed and in case the judgment-debtor intended to raise the decretal amount they would have already done so by now. No further time could be allowed. C.M. A . 661 of 2009 is therefore dismissed.
17. In view of above order on C.M.A. No,663 of 2009 and the fact that when Nazir invited bids, the Chairman of judgment-debtor No,1 was also present in the auction proceedings and had raised no objection, C.M.A. No,448 of 2009 has become infructuous and is dismissed as such.
18. With regard to the rights of an auction-purchaser, suffice to state that order of acceptance of sale in favour of the auction-purchaser that was passed on 2-6-2009 was set aside by a Division Bench of this Court vide order dated 19-6-2009 in High Court Appeal No,181 of 2009 with the consent of the counsel for the parties including the auction-purchaser and the judgment debtors were given the opportunity to put forward their case in the applications that they had moved in the present execution proceedings.
19. With regard to C.M.A. Nos.521 and 615 of 2009 filed by the decree holders, vide order dated 9-6- 2009 Nazir was directed to take possession of the mills, prepare inventory of the machineries and depute guards at the mills. The order dated 9-6-2009 is hereby confirmed and C.M.As. Nos.521 and 615 are disposed of accordingly.
20., In view of the above discussion, C.M.As. Nos.448 and 661 of 2009 stand dismissed whereas C.M.As. Nos.521, 615 and 663 of 2009 stand allowed.