Or. XXI R. 54 — Execution of money decree — Attachment of undivided share — Joint family / co-owned property — Maintainability. A decree holder is entitled to seek attachment of the judgment-debtor’s undivided share in immovable property devolved upon him by succession, and division by metes and bounds is not a condition precedent for seeking attachment under Order XXI Rule 54 CPC. (Paras 10, 11, 12, 16)

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

Code of Civil Procedure, 1908 — Or. XXI R. 54 — Execution of money decree — Attachment of undivided share — Joint family / co-owned property — Maintainability.
A decree holder is entitled to seek attachment of the judgment-debtor’s undivided share in immovable property devolved upon him by succession, and division by metes and bounds is not a condition precedent for seeking attachment under Order XXI Rule 54 CPC.
(Paras 10, 11, 12, 16)

Execution Proceedings — Undivided share — Dismissal of EP on ground of non-partition — Legality.
Dismissal of an execution petition on the ground that the undivided share of the judgment debtor has not been partitioned by metes and bounds is legally unsustainable.
(Paras 11, 12)

Transfer of Property Act, 1882 — S. 44 — Co-owner’s share — Effect on execution.
Section 44 of the Transfer of Property Act recognizes the right of a co-owner to transfer his share and the corresponding right of the transferee to seek partition; consequently, there is no legal bar to attachment and sale of such share in execution of a decree.
(Paras 14, 15)

Insolvency Proceedings — Pendency / dismissal — Effect on execution.
Mere reference to pendency of an insolvency petition does not bar execution proceedings, particularly when such insolvency petition stands dismissed subsequently.
(Paras 3, 12)

Agreement of sale — Unenforced — Effect on execution.
An unperformed agreement of sale, in respect of which no suit for specific performance has been filed, does not create a bar to attachment of the judgment-debtor’s share in execution proceedings.
(Para 13)

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ANALYSIS OF FACTS (Paragraph-wise)

1. Nature of Proceedings
   The Civil Revision Petition was filed under Article 227 of the Constitution of India challenging the order dated 25.01.2017 passed in EP.No.34 of 2016 in O.S.No.195 of 2015. (Para 1)

2. Decree and Property
   The petitioner is the decree holder in a money suit. The property in question, admeasuring Ac.4.33 cents, was purchased in the name of the respondent’s wife, who died intestate on 01.04.1996. The respondent inherited ¼th share as a Class-I legal heir. (Para 2)

3. Execution Petition
   The petitioner filed the execution petition seeking attachment of the respondent’s ¼th undivided share in the immovable property. (Para 2)

4. Trial Court’s Reasoning
   The Execution Court dismissed the EP on the grounds that:
   (i) the undivided share was not partitioned by metes and bounds, and
   (ii) an insolvency petition filed by the respondent was pending. (Para 3)

5. Petitioner’s Submissions
   The petitioner relied upon precedent holding that a money decree holder can seek attachment of the judgment debtor’s share in joint property and invoked Section 44 of the Transfer of Property Act. (Para 4)

6. Subsequent Development
   The insolvency petition IP.No.23 of 2015 was dismissed on 25.04.2023, as placed before the Court. (Para 5)

7. Respondent’s Defence
   The respondent relied upon an alleged agreement of sale executed by his wife in favour of her brother and contended that attachment without partition was impermissible. (Paras 6, 7)

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ANALYSIS OF LAW

1. Scope of Order XXI Rule 54 CPC
   Order XXI Rule 54 CPC provides for attachment of immovable property by prohibiting transfer or charge and does not require prior partition of the judgment debtor’s share. (Paras 9, 12)

2. Attachment of Undivided Share
   The Court categorically held that there is no law prohibiting attachment of an undivided share in joint or co-owned property for satisfaction of a money decree. (Para 11)

3. Error of the Execution Court
   The Execution Court committed a jurisdictional error in dismissing the EP solely on the ground that the property was not divided by metes and bounds. (Para 12)

4. Effect of Insolvency Proceedings
   Reference to an insolvency petition could not defeat execution, especially when such petition stood dismissed subsequently. (Para 12)

5. Section 44, Transfer of Property Act
   Section 44 expressly recognizes the transferability of a co-owner’s share and the right to enforce partition, reinforcing the maintainability of execution against such share. (Paras 14, 15)

6. Agreement of Sale
   An unacted-upon agreement of sale, without any suit for specific performance, does not divest title nor bar execution proceedings. (Para 13)

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RATIO DECIDENDI

A decree holder is entitled to seek attachment and sale of the judgment-debtor’s undivided share in immovable property devolved upon him by succession, and execution proceedings cannot be dismissed on the ground that the property has not been partitioned by metes and bounds; neither pendency of an insolvency petition nor an unenforced agreement of sale constitutes a legal bar to such execution.