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Hari Shankar Prasade v. Iind Adj - WRIT - C No. 19618 of 1988  RD-AH 5802 (2 April 2007)
(Judgement Reserved on23.2.2007)
(Judgement Delivered on 2.4.2007)
Civil Misc. Writ Petition No. 19618 of 1988
Hari Shanker Versus Additional District Judge, Azamgarh and others.
Hon'ble S.U.Khan J
Respondent No.3 Bhawar Nath filed O.S No. 281 of 1965 against original petitioner for recovery of Rs. 1800/- as damages for malicious prosecution. The suit was decreed for Rs.1300/-. Decree holder filed application for execution of the decree which was registered as execution case No. 1 of 1970. Immovable property of the petitioner consisting of a three storied house containing 10 shops on the ground floor was sold in auction on 18.8.1982 for Rs.36000/-. It was the duty of the executing court to ascertain as to whether sale of part of the property could satisfy the decree by virtue of order 21 Rule 64 C.P.C vide AIR 2006 SC 1458 Balakrishnan Vs. M.Konar. Even sale of one shop would have satisfied the decree of Rs.1300/-. The property was purchased by the decree holder respondent No.3 himself. It is stated that decree holder had obtained permission of the executing court for participating in auction proceedings. The sale was confirmed on 22.2.1983 and sale certificate was issued on 31.3.1983. Application for possession by decree holder auction purchaser was filed on 13.4.1983. On 6.10.1983 original petitioner filed application for setting aside the auction sale under Order 21 Rule 90 CPC which was registered as Misc. Case No. 174 of 1983. The said application was dismissed on 29.10.1986 by Munsif Gohna Azamgarh. Against the said order petitioner filed Civil Revision No. 397 of 1986 which was dismissed by II Additional District Judge, Azamgarh on 14.9.1986. This writ petition is directed against orders dated 29.10.1986 and 14.9.1986.
In the judgment of the executing court, it is mentioned that petitioner had earlier filed some application / objection on 9.9.1982 against which objections were filed and application was rejected on 6.10.1982. By order dated 10.10.2006 (on the order sheet) I directed learned counsel for both the parties to file copy of the said application and order dated 6.10.1982 passed thereupon. Learned counsel for the petitioner has filed supplementary affidavit in which it has been stated that application No. 208 C-2 is not available on record. Copy of order dated 6.10.1982 has been filed alongwith supplementary affidavit. The said order only says "counsel for Yasin is present. Heard. No one is present for Hari Shanker Prasad. 208 Ga-2 is rejected." Even the learned counsel for respondent has not been able to file copy of application 208 C-2. It is not clear that who was Yasin whose name is mentioned in the said order. Even in the objections filed by decree holder respondent to the application of petitioner under Order 21 Rule 90 CPC (copy of objection is Annexure 2 to the writ petition) it is not mentioned that earlier similar application had been rejected on 6.9.1982.
Trial court firstly held that in view of the application dated 9.9.1982 and its rejection on 6.10.1982 it was clear that petitioner had knowledge of the auction sale hence application was belated. However in the latter portion of the judgement the trial court observed as follows.
" however in the interest of justice, I am inclined to consider other objections raised by the objector ...." Thereafter the question of adequate sale price was considered and it was held that no material was brought on record to show that value of the property was three lakhs
As application 208 C-2 is not on record and order dated 6.10.1982 rejecting the said application does not contain any detail and as it appears that the said application was filed against some Yasin hence it can not be held that petitioner was aware of auction sale or similar application under Order 21 Rule 90 CPC earlier filed by the petitioner had been rejected.
The next question is that of limitation. Under Article 127 of the Limitation Act limitation to file application under Order 21 Rule 90 CPC is sixty days. Decidedly the application was filed beyond that period. However if sale is held to be fraudulent then limitation will start from the date of knowledge. Alternatively if it is held that the sale was void then the application for setting aside sale may be treated to be under section 47 CPC for which sixty days limitation does not apply. Under section 17 of Limitation Act, it is provided that the period of limitation for an application shall run from the date on which applicant discovers the fraud or mistake where fraud was played by other party or limitation should start from the date of knowledge if the knowledge of the right on which application is founded is concealed by the fraud of the other side. In AIR 2002 Pun & Har 277 it has been held that if application for setting aside sale is filed on the ground of fraud in publishing or conducting the sale then the same may be made at any time. In the following authorities it has been held that if fraud was played by the decree holder in conducting or publishing the sale then limitation under Order 21 Rule 90 CPC is to be computed from the date when the fraud first became known to the judgement debtor.
1.1989 BLJ 309 (patna)
2.1999 AIHC 939
3.1996 (1) Civil Law Journal 45 (Calcutta)
The Supreme Court in Deshbandhu Gupta Vs. N.L.Anand 1994 (1) SCC 131 has held in para 17 that " under section 47 CPC all questions relating to execution discharge or satisfaction of the decree should be determined by the executing court alone." It has further been held in the same para that "the total absence of drawing up of the proclamation of sale and settlement of its term by judicial application of mind renders the sale a nullity being void. It is covered by section 47". In the said case for realisation of decreetal amount of Rs.7780/- area of 550 square years of land was sold for Rs.105000/-.
A supplementary affidavit alongwith application dated 29.9.2004 has been filed by the petitioner annexing therewith certain documents on record of the trial court. Annexure 1 is auction proceedings dated 22.7.1981 where highest bidder was Israr Khan and his bid was Rs.54000/-. However it appears that Israr Khan did not deposit the amount. Annexure 2 is the report of advocate commissioner dated 25.7.1981. In the said order, it is mentioned that the official bid was of Rs.1 Lakh . In the said order it is mentioned that Israr Khan did not deposit the amount on the date of auction i.e 22.7.1981 and the amount was not deposited on 23 or 24 .7.1981. It is also mentioned that the second highest bidder was Badri Narain Ashok Kumar whose bid was Rs.80000/- but it was not accepted because time for fresh bidding was over. Annexure 3 to the said affidavit is the bid sheet of subsequent auction held on 8.12.1981 signed by advocate commissioner. In the said sheet also it is mentioned that the house is three storied and it has newly been constructed and contains six shops hence its reserved bid must be Rs.1 Lakh. Highest bid was of Rs.41000/- of Mushtaq Ahmad however ¼ of the amount was not deposited by that bidder hence auction was cancelled. Annexure 4 is the report of the advocate commissioner in respect of the said auction. Thereafter Annexure S.A 5 is the report of advocate commissioner dated 3.5.1982 stating therein that on 30.4.1982 it was informed to him on behalf of decree holder that he had gone out and had fallen ill hence in his absence auction proceeding should not take place and accordingly auction proceedings were not held on that date. Thereafter SA 6 is the bid sheet of auction held on 18.8.1982. In the said bid sheet, it is mentioned that reserved price was fixed at Rs.80000/- and highest bid was of decree holder respondent No.3 of Rs.36000/-. The report in respect of the said auction is Annexure SA 7 dated 21.8.1982. In that report it is mentioned that in accordance with order of the court dated 16.8.1982 auction was held on 18.8.1982. In the report it is mentioned that decree holder stated that he had obtained permission of the court to participate in the auction hence he was permitted to participate in the auction. It is not mentioned that any order of the court permitting decree holder to bid in the auction was shown to the commissioner.
Under Order 21 Rule 68 C.P.C no sale of immovable property shall take place until after the expiration of at least 15 days in the case of immovable property calculated from the date on which copy of the proclamation has been affixed on the court house. Under Order 21 Rule 69 CPC as amended by Allahabad High Court it is provided that court or the officer conducting the sale may adjourn the same recording his reasons for such adjournment. Under sub-rule (2) as added by Allahabad High Court it is provided that where sale has been once adjourned a fresh proclamation shall be made unless judgment debtor consents to waive it provided that the adjournment is for a period longer than thirty days. Before the auction sale the earlier date for sale was 8.12.1981. Thereafter the sale fixed for April / May 1982 was adjourned on the application of the decree holder himself. The sale on 18.8.1982 was beyond one month not only form the earlier sale dated 8.12.1981 which was cancelled but also from the latter sale of April / May 1982 which was not held in view of the application filed by decree holder himself. After the adjournment of earlier sale no fresh proclamation was made as required by order 21 Rule 67 read with Rule 69 C.P.C. There is no evidence that any notice to the judgement debtor was issued for settling the terms of the proclamation of sale after adjournment of the first and second sale. Non-compliance of the said provisions renders the sale void and liable to be set-aside under section 47 CPC also.
Accordingly writ petition is allowed. Impugned orders are set-aside. The result is that the sale held on 18.8.1982 as well as its confirmation order are also set-aside.
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