Order 21 Rule 64 of the Indian Code of Civil Procedure, 1908 (CPC) deals with the power of the Executing Court to order the sale of attached property.
Here is a description of the rule:
Order 21 Rule 64: Power to order property attached to be sold and proceeds to be paid to person entitled.
- Core Provision: 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.
- Application of Proceeds: The Rule further directs 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 (i.e., the decree-holder).
Key Aspects and Significance:
- Jurisdiction to Sell: This Rule confers jurisdiction upon the Executing Court to sell the attached property for the purpose of satisfying the decree.
- Mandatory Duty of the Court: Judicial interpretation has established that the Court has a mandatory duty to ensure that only such portion of the attached property is sold as is necessary to satisfy the decree.
- Proportionality Principle: The most crucial aspect is the principle of proportionality. The Court must not order the sale of the entire property if a part of it would be sufficient to satisfy the decree. This is to protect the judgment-debtor from an excessive sale of their property.
- Before Proclamation of Sale: The Executing Court must apply its mind to this provision and decide whether the whole or only a part of the attached property should be sold before issuing the proclamation of sale (under Rule 66).
- Failure to Comply: Non-compliance with the mandatory requirement of selling only a necessary portion is considered a material irregularity and may, in certain circumstances, be a ground to set aside the sale under Rule 90 of Order 21.
