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TIRLOKI & ANOTHER versus IVTH A.D.J.

High Court of Judicature at Allahabad

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Tirloki & Another v. Ivth A.D.J. - WRIT - C No. 9329 of 1987 [2004] RD-AH 1269 (29 October 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved on 08.10.2004.

Delivered on 29.10.2004.

Civil Misc. Writ Petition No.  9329   of   1987.

Triloki & another ........... Petitioners

Versus

IV Additional District Judge,

Muzaffar Nagar and others ...........      Respondents

:::::::::::

Hon'ble Ashok Bhushan, J.

Heard Sri Sankatha Rai, learned counsel for the petitioners and Sri Shashi Nandan, Senior Advocate, assisted by Sri B.D. Sharma, learned counsel appearing for contesting respondent No.4.

By this writ petition, the petitioners have prayed for quashing the order dated 25th March, 1987 passed by 4th Additional District Judge, Muzaffar Nagar allowing Revision No. 136 of 1986 (Girwar Vs. Tirloki and others) and order of the same date allowing Civil Appeal No.141 of 1986 (Girwar Vs. Tirloki and others) passed by 4th Additional District Judge, Muzaffar Nagar. Prayer has also been made to quash auction sale and to quash the order dated 10th October, 1986 passed by 1st Additional Civil Judge, Muzaffar Nagar dismissing the objection filed by the petitioners under Order XXI Rule 90 of Code of Civil Procedure (hereinafter referred to as the Code) as withdrawn.

Brief facts giving rise to this writ petition are; respondent No.3, Simaru, (who died during pendency of the writ petition and is represented by legal heirs) obtained a decree of Rs.13,000/- + 6% interest per annum dated 30th January, 1980 against Kalu, father of petitioners. Simaru filed an application for execution of decree on which Execution Case No. 56 of 1980 was registered. The Executing Court directed sale of the agricultural land belonging to the petitioners by Commissioner. Proclamation was made for auction sale fixing 21st January, 1986 at 12.00 noon. Commissioner submitted report dated 3rd February, 1986 stating that auction sale was conducted on the spot and highest bid of Rs.32,000/- has been given by respondent No.4, Girwar. The Executing Court on 4th February, 1986 passed an order accepting the bid. An application under Order XXI Rule 90 of the Code was filed by the petitioners praying for setting aside the sale dated 21st January, 1986. Objection was filed by the decree holder as well as the auction purchaser to the application under Order XXI Rule 90 of the Code filed by the petitioners. Petitioners moved an application on 3rd October, 1986 praying that they may be permitted to deposit Rs.5,000/- for payment to the decree holder. Another application was moved by the petitioners on 7th October, 1986 praying for depositing Rs.10,000/-. An order was passed on 10th October, 1986 permitting the petitioners to deposit an amount of Rs.10,000/-. The Executing Court also directed the petitioners to deposit balance amount by 13th October, 1986. Applications were also filed by the decree holder and auction purchaser for confirmation of the sale and issue of sale certificate. The Executing Court vide order dated 10th October, 1986 rejected the applications filed by the auction purchaser and decree holder for confirmation of sale and issuance of sale certificate and directed that the auction purchaser be returned the amount of auction and auction purchaser be paid 5% by way of compensation. The Executing Court held that decree holder is entitled for the amount deposited under the decree. The auction dated 21st January, 1986 was set-aside by the Executing Court. Against the order dated 10th October, 1986 by which the Executing Court has allowed time to the judgment debtor for depositing the amount was challenged by auction purchaser by filing Revision No.136 of 1986. Civil Appeal No.141 of 1986 was also filed by auction purchaser challenging the order dated 18th October, 1986 by which the Executing Court rejected the application of the auction purchaser for confirmation of the sale. Revision filed by the auction purchaser challenging the order dated 10th October, 1986 has been allowed by order dated 25th March, 1987 setting aside the order dated 10th October, 1986. By another order of the same date Civil Appeal No.141 of 1986 filed by auction purchaser against the order dated 18th October, 1986 has also been allowed. The order rejecting the application filed by the auction purchaser under Order XXI Rule 92 of C.P.C.  passed by the Executing Court has been set-aside and the application of the auction purchaser for confirmation of auction sale has been allowed by 4th Additional District Judge, Muzaffar Nagar. This writ petition has been filed challenging the aforesaid two orders passed by 4th Additional District Judge, Muzaffar Nagar by the judgment debtor. By amendment, petitioners have also prayed for setting aside the order dated 10th October, 1986 by which application filed by the petitioners under Order XXI Rule 90 of the Code was dismissed as withdrawn. The petitioners have also prayed that auction sale dated 21st January, 1986 be set-aside.

Sri Sankatha Rai, learned counsel for the petitioner, in support of the writ petition, made following submissions:-

(i) the auction proceeding dated 21st January, 1986 has been done in violation of the provisions of Order XXI Rules 54, 66 and 67 of the Code. No proclamation was made for the property in question. The entire proceeding is illegal and is liable to be quashed.

(ii) the petitioners deposited the decreetal amount under the orders of the Executing Court on undertaking given by the parties that in case the amount is deposited the same may be accepted. The objection of the petitioners filed under Order 21 Rule 90 of the Code was dismissed as withdrawn on the undertaking of the contesting respondent.

(iii) the objections of the petitioners under Order XXI Rule 90 of the Code are required to be decided on merits.

Sri Sankatha Rai, counsel for the petitioners, in support of the above submissions, placed reliance on judgment of the apex Court and this Court, namely, (1994) 1 S.C.C. 131; Desh Bandhu Gupta Vs. N.L. Anand & Rajinder Singh, AIR 1997 S.C. 2106; Lal Chand Vs. VIIIth Addl. District Judge and others, 1985 All.L.J. 1138; Ram Prasad Pandey Vs. P.B.A.S. Inter College, Hathras, Aligarh and others.

Learned counsel for the contesting respondent, replying the submissions of counsel for the petitioners, contended that sale proclamation was duly issued and served. The petitioners never raised any objection with regard to sale proclamation. The Executing Court committed error in permitting the petitioners to deposit the amount beyond 60 days of the sale. The amount having not been deposited within 60 days of the sale, Executing Court had no jurisdiction to extend the period or to accept any amount. The contesting respondent never gave any undertaking for accepting the amount before the Executing Court, rather he objected to the application of the petitioners praying for deposit of the amount. The objection under Order XXI Rule 90 was withdrawn by the petitioners on their own accord The objection filed by the petitioners under Order XXI Rule 90 was barred by time having been filed beyond 60 days from the date of sale, i.e., 21st January, 1986.

Learned counsel for the contesting respondent in support of his submissions placed reliance on 1969 All.L.J. 1087; Lal Mahendra Pratap Singh and others Vs. Smt. Radhika Devi and others, AIR 1970 Allahabad 398; Lala Ram and another Vs. Bhajani, AIR 1983 Allahabad 167; Chunni Lal Vs. Santoo Lal, AIR 1977 Allahabad 147; Mangal Prasad and others Vs. Krishna Kumar Maheshwari and others and (1994) 4 S.C.C. 177; Mohan Lal Vs. Hari Prasad Yadav and others.

During the course of arguments, learned counsel for the contesting respondent has also submitted certified copy of the order-sheet in Execution Case No. 56 of 1980, which has been kept on the record.

I have considered the submissions of both the parties and perused the record.

The first submission of counsel for the petitioners is that the entire sale proceeding is nullity due to non compliance of provisions of Order XXI Rules 54, 66 and 67 of the Code. The counsel for the petitioners contended that no sale proclamation was issued nor petitioners were aware of the change of plots by Executing Court. The counsel for the petitioners further submitted that this question which goes to the root of the matter can be permitted to be raised in this writ petition even if the same has not been raised before the Executing Court. Strong reliance has been placed on the judgment of apex Court in Desh Bandhu Gupta's case (supra). The apex Court in Desh Bandhu Gupta's case (supra) has held that notice under Order XXI Rule 66(2)is mandatory. Omission thereof renders the further action and the sale in pursuance thereof void. There cannot be any dispute with the proposition laid down by the apex Court in Desh Bandhu Gupta's case (supra). The question, however, to be considered in this case is as to whether notice under Order XXI Rule 54(1-A) and Rule 66(2) was served or not. The learned counsel for the respondent has submitted that no objection at any time was raised by the decree holder against non service of notice by the judgment debtor and even in the objection filed under Order XXI Rule 90, no objection was to the effect that notice as contemplated under Order XXI Rule 54 and Rule 66 has not been served. Certified copy of the extract of the order-sheet of Execution Case No. 56 of 1980 has been brought on the record by supplementary affidavit filed by the petitioners, however, complete certified copy of the order-sheet of the case has been placed on the record by learned counsel for the contesting respondent. From a perusal of the order-sheet of Execution Case No. 56 of 1980, it is clear that the auction sale held on 21st January, 1986 is the seventh attempt for auction of the property by sale. On three occasions, i.e., 13.12.1983, 13.7.1985 and 13.9.1984 no one came forward to give any bid. On two occasions, i.e., 14.1.1985 and 15.4.1985 bid was given by decree holder. The bid given on 14.1.1985 was held insufficient by the Court on 17.1.1985. The bid of Rs.22,000/- given on 15.4.1985 was accepted by the Court on 18th April, 1985 but the amount was not deposited by decree holder, hence the bid was subsequently cancelled. Even on the last occasion sale was directed to be made by Commission in pursuance of the order dated 11.12.1985 of the Executing Court, on 21.12.1985 the Court ordered sale by Advocate Commissioner fixing 21.1.1986 for sale, 28th January, 1986 for report by the Commissioner and sale proclamation was to be issued by 5th February, 1986. The order-sheet dated 10.1.1986 and 21.1.1986 make it clear that proclamation was done and Parwana Munadi was returned. On 11.12.1985 Application 41-D was given by judgment debtor for time, which was rejected by the Court. A copy of the objection filed by the petitioners under Order XXI Rule 90 has been annexed as Annexure-2 to the writ petition. The objection filed by the petitioners dated 4.4.1986 does not contain any objection to the effect that no sale proclamation for sale was issued or no notice was given to the petitioners as required under Order XXI Rule 54. Application for amendment of plots in the sale proclamation was allowed on 28.10.1985. The Court has recorded in the order-sheet that no objections were filed to the application for amendment of the execution. From a perusal of the order-sheet, specially the fact that on earlier two occasions the auction had taken place and sale proclamations were issued for seventh time, the submission of the petitioners that no proclamation was issued cannot be accepted. Furthermore, the petitioners having never raised any objection stating that no sale proclamation has been issued, the submission of the petitioners is without any substance and cannot be accepted.

The second question, which arises for consideration, in this case is as to whether the Executing Court rightly permitted the petitioners to deposit the decreetal amount after the auction sale. Under Order XXI Rule 89 where immovable property has been sold in execution of a decree and person claiming an interest in the property may apply and have the sale set-aside. The limitation for an application under Order XXI Rule 89 of the Code is sixty days according to Article 127 of the Limitation Act and time during which period begins to run is the date of sale. In the present case auction took place on 21st January, 1986 and the Court accepted the bid on 4th February, 1986. The application for permitting deposit of the amount was made by the petitioners on 7th October, 1986. The apex Court in Mohan Lal's case (supra) in paragraph 7 of the judgment held:-

"7. The High Court was thus right in coming to the conclusion that the Executing Court had no jurisdiction whatsoever to entertain the application purporting to be under Order XXI Rule 89 of the Code after the period of Limitation prescribed by Article 127 of the Limitation Act."

Copy of the order-sheet in Misc. Case No.12 of 1986 has been filed by the petitioners. On 10.10.1986 the Executing Court allowed the application of the petitioners to deposit the amount. On the same day the Executing Court directed the petitioners to withdraw the objection under Order XXI Rule 90 of the Code. The objection was rejected accordingly. In view of the express provisions of Order XXI Rule 89, the Executing Court could not have directed the petitioners to deposit the decreetal amount. The provisions of Order XXI Rule 89 of the Code gives an opportunity to any person claiming interest in the property including the judgment debtor to get the sale set-aside by paying auction purchaser a sum equal to five per cent of the purchased money as compensation and after paying the decree-holder the amount specified in the proclamation. The judgment debtor having not availed the opportunity given under Order XXI Rule 89 of the Code cannot be allowed the benefit after expiry of the period of limitation.

Now the submissions raised by both the counsel with regard to objection under Order XXI Rule 90 of the Code are required to be considered. From a perusal of the order-sheet dated 10.10.1986 in Misc. Case No.22 of 1986, a copy of which has been filed as Annexure-8 to the writ petition, it is clear that the Executing Court allowed the application of judgment debtor observing that sale in the execution can be rejected only when decree holder deposits entire amount and 5% of purchased money. The Executing Court passed the tender for deposit of Rs.10,000/- and permitted the balance amount to be deposited on 13.10.1986 observing that if the judgment debtor deposits the amount, the auction can be rejected. On 10th October, 1986 in the order-sheet of Misc. Case No. 12 of 1986 the judgment debtor wrote that the objection under Order XXI Rule 90 of the Code is withdrawn since the substantial amount under decree has been paid and the balance shall be deposited. Obviously the act of withdrawing the objection under Order XXI Rule 90 of the Code was due to the Executing Court having passed the tender for deposit of Rs.10,000/- and permitting deposit of balance amount by 13.10.1986. The counsel for the petitioner elaborating his submission contended that deposit of decreetal amount and withdrawal of the objection was, in fact, due to undertaking by the decree holder and the auction purchaser which submission has been refuted by counsel for the respondent. The counsel for contesting respondent submitted that the application for depositing the amount was opposed by the respondent. The Executing Court in the order dated 18.10.1986 passed in Misc. Case No. 22 of 1986 observed that the amount deposited on 10.10.1986 was deposited on the undertaking by decree holder and judgment debtor since both the parties have prayed for rejecting the objection under Order XXI Rule 90 of the Code. The Executing Court further observed that if there would not have been undertaking between the parties, the judgment debtor would not have got his objection under Order XXI Rule 90 rejected. Making these observations, the Executing Court set-aside the sale and observed that 5% of purchased money be taken by auction purchaser and the amount deposited be taken by the decree holder. The order dated 18.10.1986 read with order-sheet of execution as well as misc. cases make it clear that withdrawal of the objection under Order XXI Rule 90 of the Code and the action of the Court permitting the judgment debtor to deposit the decreetal amount was part of one act and both are interlinked. As observed above, the Executing Court had no jurisdiction to permit the decree holder to deposit the amount under Order XXI Rule 89 after expiry of 60 days, the order of Executing Court permitting deposit of the amount was illegal. The judgment debtor having got his objection dismissed due to the reason that Executing Court permitted him to deposit the amount, it is in the interest of justice that order rejecting the objection as withdrawn be also set-aside.

Learned counsel for the contesting respondent has strenuously contended that objection of the petitioners under Order XXI Rule 90 being barred by time, no useful purpose will be served in directing for consideration of the said objection by the Executing Court. Relying on the judgment of this Court in Chunni Lal's case (supra), it has been contended that remand is not necessary as application itself is not maintainable having been filed beyond 60 days. Learned single Judge in the above judgment has observed that objection under Order XXI Rule 90 of the Code in that case having been filed beyond 30 days, the same could not have been entertained. The thrust of the submission of counsel for the contesting respondent is that auction sale took place on 21st January, 1986 and the bid was accepted by the Advocate Commissioner, hence the period of 60 days shall begin from 21st January, 1986 and objection filed on 4th April, 1986 was beyond time. The reply given by counsel for the petitioners is that the Court has confirmed the bid on 4th February, 1986, hence the limitation of 60 days shall begin from 4th February, 1986. Reliance has been placed by counsel for the petitioners on the Division Bench judgment of this Court in Lal Mahendra Pratap Singh's case (supra) and Lal Ram's case (supra). The Division Bench of this Court in Lal Mahendra Pratap Singh's case (supra) has held that in the circumstances of that case the sale took place on March 28, 1968 when the Commissioner accepted the highest bid and closed the auction, the objection under Order XXI Rule 90 of the Code was filed beyond limitation. The Court further held that in the report of the Commission the words, "Sweekar Kiya Jaya" occurring at the bid-sheet prepared by the Commissioner were subsequently added as found by the court below. The Division Bench in Lal Ram's case (supra) has, after considering the provisions of Order XXI Rule 84, interpreted the date of sale, in paragraph 15 of the judgment, which is extracted below:-

"15. From an analysis of the decided cases and of the relevant provisions of the Code it appears to us that, in three cases, the date of the sale will be the date of acceptance or approval of the bid by the Court, namely,

(i) When there is a practice of a rule to this effect.

(ii) When the Court has reserved to itself the power to accept the bid and to declare the purchaser; and

(iii) When the officer conducting the sale does not, in fact, conclude the sale by accepting the highest bid but refers the matter to the Court.

In other cases, the date of sale will be the date on which the officer conducting the sale accepts the highest bid, declares the purchaser and the purchaser deposits 25 per cent of the purchase price. We, therefore, hold that the date of sale in the present case was September 14, 1963, when the highest bid of Girraj was accepted by the Amin and Girraj deposited 25 per cent of the purchase-money with the Amin. The application for setting aside the sale was filed more than 30 days after that date and was time barred."

From the Division Bench pronouncement in above case except three circumstances, as mentioned by the Division Bench, date of sale is the date on which officer conducting the sale accepts the highest bid, declares the purchaser and the purchaser deposits 25 per cent of the purchased price. The question, thus, to be considered is as to whether present case falls in any of the three exceptions to the general rules as laid down in paragraph 15 of the above judgment. The first exception, as noted by the Division Bench, is when there is a practice or a rule to this effect. In the present case there is no material to come to any conclusion that exception-(i) is attracted. Exception (iii) is to the effect that when the officer conducting the sale does not, in fact, conclude the sale by accepting the highest bid but refers the matter to the Court. In the present case, the report of the Commission has been filed as Annexure-1 to the writ petition. From a perusal of the report it appears that bid given by auction purchaser for Rs.32,000/- was accepted, however, the report was submitted by the Commissioner to the Court. The exception (ii), as noted in the said judgment is, when the Court has reserved to itself the power to accept the bid and to declare the purchaser. The question, thus, is as to whether in facts and circumstances of the present case can it be held that the Court has reserved its power to accept the bid. From a perusal of the order-sheet of Execution Case No. 56 of 1980, it is clear that conditions for auction sale were determined by the Court on 6th October, 1983 and prior to sale in question two earlier sales had taken place on 14.1.1985 and 15.4.1985. After the receipt of the report of sale held on 14.1.1985, the Executing Court on 17.1.1985 passed following order:-

"The bid is insufficient, hence cannot be accepted. Steps for sale be taken in 7 days."

Again after the sale having taken place on 15.4.1985, the report was submitted on 18th April, 1985 and the Court by detailed order accepted the bid on 18th April, 1985.  The Court further ordered that judgment debtor, if has any objection, he may give the objection within two months. From the order of the Court dated 18th April, 1985, it is clear that time of two months was allowed from the date of acceptance of the bid by the Court.

After the auction held on 21st January, 1986, the report of the Commission was submitted and the Court passed order on 4th February, 1986 accepting the bid. On 4th February, 1986 following order was passed:-

"In view of the previous order, the bid is the highest one. Keeping in view the property and the pendency......, the bid is hereby accepted. Put up after 60 days. Objections, if any, filed by the judgment debtor will be disposed of thereafter. Inform the parties counsel."

The Court again gave 60 days time to the judgment debtor to file objection by above order as was allowed while accpeting the bid. At this juncture, it is relevant to note the submission made by counsel for auction purchaser in his revision. The counsel for auction purchaser in support of his revision by which order dated 10.10.1986 was challenged has made submissions with regard to limitation for filing objection under Order XXI Rule 89 of the Code regarding deposit of the amount. The revisional Court after considering the arguments made following observations in the impugned judgment:-

"I have heard the counsel for the parties. The counsel for the revisionist argued that it is a mandatory provision that the deposit U/O 21 Rule 89 C.P.C. may be made within 60 days as per the amendment brought by the Hon'ble Allahabad High Court. He further argued that as per the prevailing views the application U/O 21 Rule 90 C.P.C. are withdrawn or disposed of. He argued that the auction sale was made on 21.1.1986 and the highest bid of the auction purchaser that the revisionist was accepted on 4.2.1986, so in these circumstances the amount U/O 21 Rule 89 C.P.C. could have been deposited within 60 days that is by 5.4.1986 but the application U/O 21 Rule 90 C.P.C. was withdrawn on 10.10.86, so then only the application U/O 21 Rule 89 C.P.C. may be deemed to have been moved, hence the payment is time barred and cannot be extended."

From above submission of counsel for the auction purchaser, as recorded by the revisional Court, it is clear that auction purchaser himself contended before the Court that objection within 60 days could have been filed only up to 5th April, 1986. The counsel further stated that highest bid of auction purchaser was accepted on 4th February, 1986. The submission made by counsel for auction purchaser before the revisional Court is in line with the order of the Executing Court permitting 60 days time for filing objection from the date of acceptance of the bid. In view of the above, it can be safely accepted that in facts of the present case the Court has reserved to itself the power to accept the bid and the limitation was to run from the date the Court accepted the bid.

In view of the foregoing discussions, the objection filed by the petitioners under Order XXI Rule 90 of the Code cannot be said to be barred by time and the same requires consideration on merits.

In result, the writ petition is partly allowed. The order dated 25th March, 1987 passed in Civil Appeal No. 141 of 1986 is set-aside. The order dated 10th October, 1986 passed by the Executing Court in Misc. Case No. 12 of 1986 dismissing the objection of the petitioners under Order XXI Rule 90 of the Code as withdrawn is also set-aside. The Executing Court is directed to proceed with the objection filed by the petitioners under Order XXI Rule 90 of the Code and decide the same after hearing counsel for both the parties. The Executing Court is directed to decide the objection expeditiously, preferably, within a period of three months from the date of production of a certified copy of this order. The writ petition praying for quashing the order of the revisional Court dated 25th March, 1987 is dismissed. The order dated 25th March, 1987 passed by the revisional Court setting aside the order dated 10th October, 1986 passed by the Executing Court permitting the judgment debtor to deposit the decreetal amount is maintained.

Parties shall bear their own costs.

Dated October 29, 2004.

Rakesh


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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