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Praveen Kumar v. Iind A.D.J., Mathura & ors - WRIT - C No. 7532 of 1987  RD-AH 743 (8 September 2004)
Civil Misc. Writ Petition No. 7532 of 1987
Parveen Kumar ------ Petitioner
IInd Addl. District Judge, Mathura & others..... Respondents.
Hon'ble V.C.Misra, J.
Heard Sri N.K.Srivastava, learned counsel for the petitioner who is present but no one has appeared on behalf of the respondents nor any counter affidavit has been filed on record.
The facts of the case in brief are that one Sri Dharam Singh filed a suit for recovery of the money against Sri Ram Singh- respondent no. 3. Respondents no. 4 to 8 are heirs and legal representatives of Sri Dharam Singh and they were substituted during the pendency of the revision in the court below. The aforesaid suit was decreed under Order XXXIV Rule 5 of the Code of Civil Procedure on 7th February, 1979. Dharam Singh-the decree-holder, filed Execution Case No. 91 of 1979 on 26th November, 1979. The property, in question, was auctioned on 28th January, 1981 in the execution proceedings and one late Sri Udai Singh purchased the property for a sum of Rs. 25,000/-. The petitioner in the present writ petition is the heir and legal representatives of late Sri Udai Sigh. On 7th February, 1979 Sri Ram Singh the judgment-debtor filed an application for cancellation of the auction on the ground that he had made payment of decretal amount to the decree holder out of the Court though he had not deposited any amount of the decree or the amount specified in the proclamation of the sale in the court nor even deposited 5 % of the auction amount as provided under Order XXI Rule 89 of the Civil Procedure Code within the specified period. The petitioner filed objection to the said application and asserted that Order XXI Rule 22 of the Civil Procedure Code was not applicable after the property was auctioned and the property had been purchased by the auction purchaser; and secondly, such provision was not applicable in a case which was under Order XXXIV Rule 5 of the Civil Procedure Code; and lastly, the amount which was required to be deposited under Order XXI Rule 89 of the Civil Procedure Code had not been deposited.
On 15th December, 1981 the judgment debtor Sri Ram Singh filed an application before the Execution Court to deposit 5 % of the purchased money as required under Order XXI Rule 89 of the Civil Procedure Code. The petitioner filed objections. After hearing learned counsel for the parties, the court below however, permitted him to deposit the amount at his own risk. On 18th May, 1982 the auction sale was confirmed. The sale certificate was issued and the sale deed was registered in the name of auction purchaser.
Respondent no. 2- Munsif Mahawan, Mathura, rejected the application of the judgment-debtor- Sri Ram Singh on the ground that the application was not maintainable having been moved after the auction had taken place and since the provisions of OrderXXI Rule 89 of the Civil Procedure Code had not been complied with. It was further held that the provisions of Order XXI Rule 2 of the Civil Procedure Code were not applicable as the sale was made under a decree passed under Order XXXIV Rule 5 of the Civil Procedure Code.
The judgment- debtor- Sri Ram Singh being aggrieved by the above order, filed a Revision No. 158 of 1982 before IInd. Addl. District Judge, Mathura- respondent no. 1, which was allowed by the impugned order dated 20th January, 1987 on the ground that a decree-holder had certified the receipt of the payment of the decretal amount and the decree would be deemed to have been satisfied under Order XXI Rule 2 of the Civil Procedure Code. The respondent no. 1- IInd. Addl. District Judge, Mathura also held that even if 5 % of the purchased money was not deposited in accordance with the provisions of Order XXI Rule 89 of the Civil Procedure code that would not affect the provisions of Order XXI Rule 2 of the Civil Procedure Code and set aside the order dated 11th October, 1982 passed by the learned Munsif- respondent no. 2 in Execution Case No. 91 of 1979. The respondent No. 1 also released the property, in question in favour of the judgment-debtor Sri Ram Singh and allowed the legal heirs of the auction purchaser of Late Sri Udai Singh to withdraw the amount of Rs. 25,000/- deposited by him in the court as purchase money along with Rs. 1250/- deposited by the judgment-debtor as 5 % of the amount of the purchase money.
The petitioner, being aggrieved by the impugned order dated 20th January, 1987 (Annexure No. 2 to the writ petition) filed the present writ petition which was admitted on 13th April, 1987 and an interim order restraining respondent no. 3 from alienating the property, in question, was passed by this Court.
I have heard learned counsel for the petitioner at length and perused the entire record of the case.
Learned counsel for the petitioner in support of his case relied upon the decisions of this Court, namely; in Mst. Mangro and others Vs. Ist Additional District Judge, Muzaffarnagar & others ( 2001 (2) All.CJ. , 1187) & in Azizul Rehmabn Vs. IX Additional District Judge, Moradabad and others. ( 1993 (1) All.CJ., 1) in which it has been held by their Lordships that the deposit for payment to the purchaser under Order XXI Rule 89 of the Civil Procedure Code within 30 days of the date of sale is mandatory otherwise the prayer for setting aside the sale under Order XXI Rule 89 of the Civil Procedure Code cannot be entertained and once the sale is confirmed and becomes absolute, it cannot be set aside and the judgment-debtor cannot get back the property sold in execution of decree under provisions of Order XXI Rule 66 of the Civil Procedure Code.
The Hon'ble Supreme Court in P.K.Unni Vs. Nirmala Industries ( 1990 ALL. CJ., 387) has similarly held that for moving an application for setting aside the sale the deposit under Order XXI Rule 89 of the Civil Procedure Code is a condition precedent. The condition must be satisfied within the period prescribed under Rule 92 (2), which is undoubtedly 30 days. A similar view had been taken in Nanhelal and another Vs. Umrao Singh ( A.I.R. 1931 Privy Council 33). It was held that once a sale has been effected, a third party's interest intervenes and there is nothing in Order XXI Rule 2 of the Civil Procedure Code to suggest that it is to be disregarded, therefore, after a sale is duly held the Court cannot refuse to confirm the sale on the ground that the decree-holder and judgment-debtor say that the decree has been satisfied out of Court.
In my view, the facts of the present case are squarely covered by the aforementioned decisions cited by the learned counsel for the petitioner.
It is on the record that the respondents till date have not filed their counter affidavit in rebuttal to the averments made in the writ petition, in spite of time being granted to them. It is settled law that if no affidavit in rebuttal is filed and the averments made in the affidavit are not controverted then the said averments must be accepted as true and correct and the presumption is in favour of the petitioner in terms of Section 114 Illustration (G) of the Evidence Act, as laid down in catena of decisions including, A.I.R. 1966 Alld. page 156, A.I.R. 1962 Alld. page 407, A.I.R. 1987 S.C. page 479 and 1999 (82) Factory Law Report, page 709 . In the absence of counter affidait, this Court is left with no option but to accept the averments made in the writ petition to be true and correct.
On the basis of above facts and circumstances of the present case, observations and settled law, I find that respondent no. 1- IInd Additional District Judge, Mathura has erred in allowing the Revision and setting aside the order dated 11th October, 1982 passed by Munsif Mahawan, Mathura- respondent no. 2 in a Execution Case No. 91 of 1979 and has wrongly applied the provisions of Order XXI Rule 2 of the Civil Procedure Code in the present case which are not applicable since the deposit of 5 % of the sale price was not made by the judgment-debtor with in a period of 30 days as required under Order XXI Rule 89 read with Rule 92 of the Civil Procedure Code. Since it was imperative under Order XXXIV Rule 5 of the Civil Procedure Code that the amount due to the decree-holder should have been deposited in the Court and payment of adjustment out of Court would not be a compliance as required under Order XXXIV Rule 5 of the Civil Procedure Code, and more so, since the sale by auction had been confirmed and the sale deed having been executed was duly registered in favour of the auction purchaser, the impugned order dated 20th January, 1987 passed by IInd Additional District Judge, Mathura- respondent no. 1 for cancellation of the auction was wholly illegal and without jurisdiction.
Accordingly, the writ petition is allowed. The impugned order dated 20th January 1987 passed by IInd. Additional District Judge, Mathura- respondent no. 2 is set aside. No order as to costs.
September 8th 2004
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