(1.) This petition under Section 115 of the Code of Civil Procedure is directed against the orders of learned District Judge, Solan, dated 6/11/1997 whereby the objections filed by the petitioner-judgment debtor against the confirmation of the sale were dismissed.

(2.) Petitioner Vidya Hatchery was the principal judgment debtor in a decree suffered by the JDs M/s. Vidya Hatchery Farm, Nand Lal and Diwakar Dutt Sharma for an amount of Rs. 1,00,904-05, dated 20-9-1990 with future interest at the rate of 13% per annum payable to the decree-holder bank. The decree-holder moved an application for execution of the decree and recovery of Rs. 1,71,980-73 with costs of Rs. 6,582-60 on 30-6-1992. The immovable properties of the petitioner-judgment debtor and Nand Lal were attached and sold. However, on the objections of the JDs the auction was set aside. Fresh warrants of sale were issued and property of the petitioner was sold on 10-3-1997 in an auction conducted by the Tehsildar, Solan (Naib Tehsildar, Krishangarh, Distt. Solan). The property was sold for Rs. 2,00,000.00 to the auction purchaser-respondent. This amount was deposited in the Court. The present petitioner filed objections to the sale. It was alleged that sale was to be conducted in lots and the sale of three bighas of attached property would have been sufficient to satisfy the decree. It was also the case of the petitioner that proclamation was not properly published. The petitioner also took objection that value of the land in question in the revenue record was Rs. 68,964.00 per bigha, as per the average sale price for the year 1995-96, as reflected in the certificate issued by the Patwari but the entire land was sold for meagre amount of Rs. Two lacs.

(3.) Learned District Judge vide his impugned orders dismissed the objections, holding that only recourse open to the judgment debtor was to deposit the decretal amount in accordance with Rule 89 of Order 21 of the Code of Civil Procedure before the confirmation of the sale. The learned District Judge took a view that fact that house of the petitioner was also sold along with the land has no consequence, as according to him, the entire property was mortgaged with the Bank.

(4.) I have heard Mr. Ashwani K. Sharma, learned counsel for the petitioner, Mr. G. D. Verma, learned Senior Advocate, with Mr. Romesh Verma, Advocate for auction purchaser and Mr. Ravi Bakshi, learned counsel for the decree-holder bank and perused the record.

(5.) It is true that this Court in its revisional jurisdiction will not interfere unless it is shown that the executing Court committed material irregularity or miscarriage of justice has been caused by the orders impugned. (6.) Proclamation of sale, I notice, clearly stipulated that the property under attachment shall be sold in lots. But sale was conducted by the concerned Revenue Officers in disregard to the condition despite the petitioner moved an application that the entire property should not be sold in one go. He represented that at the first instanc Khasra Nos. 211, 212 and 213, which consists of thre bighas plot, may be sold and if still some decretal amount remained unsatisfied then other property may be sold in lots. No action was taken by the Naib Tehsildar who conducted the sale on this representation of the petitioner Nand Lal. Rule 64 of Order 21 of the Code of Civil Procedure stipulates that the entire property should not be sold in satisfaction of the decree, only such portion as would satisfy the decree should be sold. Rule 64 of Order 21 reads :

"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." (Emphasis supplied)

It may be seen that it is the duty cast upon the Court to sell only such property or a portion thereof as necessary to satisfy the decree. In Ambati Narasayya v. M. Subba Rao, AIR 1990 SC 119 their Lordships held:

"that in all execution proceedings, the Court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to satisfy the decree." Their Lordships further observed :

"If the property is large and the decree to be satisfied is small, the Court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree holder. It is immaterial whether the property is one or several."

"Even if the property is one, if a separate portion could be sold without violating any provision of law only such portion of the property should be sold. This, in our opinion, is not just a discretion, but an obligation imposed on the Court. Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without jurisdiction."

(7.) Apparent as it is the sale of the attached property in favour of the auction purchaser having not been conducted in terms of Rule 64 of Order 21 of the Code of Civil Procedure is illegal and without jurisdiction.

(8.) For this reason alone, the sale is liable to be set aside. I accordingly allow this petition and set aside the impugned order of the learned District Judge, confirming the sale.

(9.) The decree-holder/Bank was permitted to withdraw Rs. 2,00,000.00 which were deposited by the auction purchaser. The amount so withdrawn by the Bank, shall be redeposited with the District Judge, Solan, along with interest, which is payable on the fixed deposit with Bank, within three

weeks from today. (10.) On deposit of the amount, the auction purchaser shall be entitled to withdraw the same along with interest. (11.) As the execution of the decree is pending for almost a decade, the learned District Judge, shall expedite disposal of the execution petition in accordance with law and in the light of the observations made hereinabove. (12.) The parties are directed to appear before the learned District Judge, Solan, on 10th January, 2002. Records of the case be sent to that Court so as to reach their without any undue delay on or before the date fixed. The petition stands disposed of. Petition allowed.