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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION (CRA) NO.71/2014
1. Harun Haji Suleman,
Aged : 67 years, Occ. Cultivator.
2. Abu Bakar Haji Suleman,
Aged : 65 years, Occ. Cultivator.
3. Abdul Shakur Haji Suleman,
Aged : 62 years, Occ. Cultivator.
4. Hurbano Abd. Razzaque Bhura,
Aged : 53 years, Occ. Cultivator.
All 1 to 4 R/o Banosa,
Taluka Daryapur,
District Amravati.
5. Banobai w/o Mohd. Yunus Parekh,
Aged : 57 years, Occ. Housewife,
R/o Shivani Chapara,
District Sioni (Madhya Pradesh).
6. Faridabano Haji Tar Mohammad,
Aged : 55 years, Occ. Housewife,
At Post Manora, Taluka Manora,
District Washim.
7. Mehrunbano w/o Mohd. Iqbal Akbani,
Aged : 51 years, Occ. Housewife,
At Post Karanja (Lad),
District - Washim.
8. Jakiya Bano w/o Mohd. Salim Motlani,
Aged : 47 years, Occ. Housewife,
At Post - Mundi, Taluka and District
Khandwa (M.P.) APPLICANTS/
JUDGMENT DEBTORS
All represented by Applicant No.2
through Power of Attorney.
...V E R S U S...
1. M/s. Girdhardas Vitthaldas Devi,
Registered Partnership
Firm through partners -
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(a) Girdhardas Vitthaldas Devi, Major.
(b) Natwardas Dwarkadas Devi, Major.
Occupation - Business,
R/o Karmala, Main Road Karmala,
Tq. Karmala, District Solapur. ..... NON-APPLICANTS
2. Bapurao Sahebrao Raibole (DEAD)
By L.Rs.
Smt. Bankabai Bapurao Raibole,
Aged : 77 years, Occ. Nil,
R/o Shingawadi, Tq. Daryapur,
District Amravati.
3. Umesh Bapurao Raibole,
Aged : 57 years, Occ. Service,
R/o Shingawadi, Tq. Daryapur,
District Amravati.
4. Purushottam Bapurao Raibole,
Aged : 55 years, Occ. Service,
R/o Shingawadi, Tq. Daryapur,
District Amravati.
5. Gopal Bapurao Raibole,
Aged : 47 years, Occ. Agriculturist,
R/o Shingawadi, Tq. Daryapur,
District Amravati.
6. Sau. Sheelabai Ashokrao Lonkar,
Aged : 52 years, Occ. Household,
R/o Ramagadh, Tq. Daryapur,
District Amravati. ... AUCTION PURCHASERS
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Shri M. R. Joharapurkar, Advocate for the applicants.
Shri J. J. Chandurkar, Advocate for the respondent Nos.2 to 6.
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CORAM:-
ARUN D. UPADHYE, J.
Date of reserving the judgment : 07/12/2017
Date of pronouncing the judgment : 12/12/2017
JUDGMENT
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1. By this revision application, the applicants have prayed to quash and set aside the order dated 08/07/2014 below Exh.148 passed in R.D. No.8/92 pending on the file of Civil Judge, Senior Division, Daryapur. The brief facts of the case are as under :-
2. The non-applicant No.1 has filed Regular Civil Suit No.33/1980 for recovery of amount of Rs.15,593.15 before the Civil Judge, Junior Division, Karmala. The said suit was decreed on 20/02/1980 and defendants were directed to pay the amount jointly and severally with interest @ 6 % per annum. The non-applicant No.1 got transferred the degree from the said Court and filed execution proceedings bearing No.8/1992 before the C.J.S.D., Daryapur.
3. During the pendency of the execution proceeding, agricultural land was attached and Executing Court has issued sale proclamation and sale was fixed at spot on 05/07/2002 and 06/07/2002. The applicants have filed application under Order 21 Rule 90 for setting aside the sale. However, said application was rejected by the trial Court on 13/04/2007. The auction purchasers have deposited the amount of Rs.2,15,000/- before the Executing Court on 06/07/2002. However, he has not deposited the amount towards General Stamp Papers for the certificate under Rule 94. There was no ::: Uploaded on - 12/12/2017 ::: Downloaded on - 13/12/2017 02:04:24 ::: 4 J-CRA-71-14.odt compliance of the Order 21 Rule 85 and therefore, application was filed vide Exh.130 not to confirm the sale. The said application Exh.130 was rejected by the trial Court on 19/09/2011. Thereafter, the applicants have preferred Writ Petition No.2757/2012 before the Hon'ble High Court. The said writ petition was allowed and Executing Court was directed to decide the application filed by the petitioner afresh after deciding the application of legal representatives of the auction purchasers.
4. The applicants have preferred application on 06/03/2014 for permission to deposit the decretal amount by Demand Draft of Rs.50,000/-. The auction purchasers have filed reply to the said application. The decree holder has also filed reply after hearing both the sides. The application Exh.148 filed by the applicants for permission to deposit the decretal amount was rejected on 08/07/2014. The said order is impugned in this revision application.
5. I have heard both the sides at length. Shri M.R.Joharapurkar, learned counsel for the applicants and Shri J.J. Chandurkar, learned counsel for the non-applicants at length.
6. Shri Joharapurkar, learned counsel for the applicants has submitted that the learned trial Court has committed an error while ::: Uploaded on - 12/12/2017 ::: Downloaded on - 13/12/2017 02:04:24 ::: 5 J-CRA-71-14.odt rejecting the application filed by the applicants / Judgment Debtors for depositing the decretal amount. He further submitted that though the auction purchasers have deposited the amount in the Court, but yet sale is not confirmed by the Executing Court. He further submitted that the writ petition filed by the applicants was allowed and the Executing Court was directed to decide the application Exh.130 filed by the applicants / Judgment Debtors, after deciding the application filed by the legal representatives of auction purchasers Exh.133 for depositing the amount for purchase of stamp papers. He, therefore, submitted that the order passed by the Executing Court below Exh.148 be set aside and application filed by the applicants vide Exh.148 be allowed.
7. Shri Chandurkar, learned counsel for the non- applicants has submitted that the order of the Hon'ble High Court is bypassed by filing the application at Exh.148 by the applicants. He submitted that though the sale is not confirmed, the application filed by the applicants for depositing the decreetal amount is barred by limitation and the same is rightly rejected by the trial Court. The revision application filed by the applicants, therefore, be dismissed.
8. Considering the submission of both the sides and having gone through the impugned order as well as documents placed on record, it appears that the application Exh.148 filed by the ::: Uploaded on - 12/12/2017 ::: Downloaded on - 13/12/2017 02:04:24 ::: 6 J-CRA-71-14.odt applicants/Judgment Debtors was rejected by the Civil Judge, Senior Division, Daryapur by its order dated 08/07/2014. It is not disputed that the Decree Holder has filed execution proceeding for money decree of Rs.26,289.35 with interest @ 6% per annum passed on 25/03/1992. It is also not disputed that during the pendency of the said proceeding, the property of the applicants was attached and the auction purchasers have also deposited the amount of Rs.2,15,000/- in the year 2002. However, they have failed to pay the amount towards purchase of stamp duty. The application Exh.133 is pending filed by the auction purchasers for depositing the said amount. The applicants have also filed an application Exh.130 for fresh sale as auction purchasers have not complied with the provisions of Order 21 Rule 85 of the C.P.C. and also for not to confirm the sale dated 06/07/2002. It appears that the applicants have also filed Writ Petition No.2757/2012 before the Hon'ble High Court against the order dated 19/09/2011 passed by the Executing Court rejecting the application filed by the applicants. The said writ petition was allowed. The order of the Executing Court was quashed and the Executing Court was directed to decide the application filed by the applicants afresh on merits, after deciding the application filed by the respondent Nos.2 to 5 for permission to deposit the amount of general stamp paper, if not decided earlier.
9. The applicants have filed application Exh.148 on ::: Uploaded on - 12/12/2017 ::: Downloaded on - 13/12/2017 02:04:24 ::: 7 J-CRA-71-14.odt 06/03/2014 praying to deposit the decretal amount vide Demand Draft of Rs.50,000/- towards satisfaction of the Decree. However, the said application was rejected by the impugned order.
10. Considering the above facts and circumstances of the case, it appears that the learned Executing Court was not justified while rejecting the application filed by the applicants to deposit the amount towards the decretal amount. The fact that the auction purchasers have deposited the amount in the Court for satisfaction of the decree in the year 2002 is no ground to reject the application. The sale proceedings not concluded as the sale is yet to be confirmed. The applicants / Judgment Debtors should have given an opportunity to satisfy the money decree by paying amount with interest. The learned Executing Court, however, wrongly rejected the application. The order passed in Writ Petition No.2757/2012 does not prevent the applicants to deposit the decretal amount in the Court for satisfaction of the decree. The fact that the application filed by the auction purchasers for depositing the amount towards the purchase of the stamp paper and application filed by the applicants for setting aside the sale, will not come in the way of the applicants for paying the entire decretal amount for satisfaction of the decree. The Executing Court should have accepted the said amount for full satisfaction of the decree when the applicants / Judgment Debtors are ready to pay the same.
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11. The learned counsel for the applicants has relied upon the ruling, in the case of Sukumar De Vrs. Bimala Auddy and others, reported in 2014 (4) Mh.L.J. 501.
In the above ruling, it is held that the discretion of the Court to set aside the auction sale if Judgment Debtor pays required amount. The Executing Court confirming and issuing sale certificate to auction purchaser. On direction of the High Court, Executing Court calculated the amount due under the decree and the High Court gave an opportunity to the Judgment Debtors to deposit the amount which was immediately paid by the Judgment Debtors. Exercise of discretion of the High Court not erroneous and not contrary to law warranting interference. The Judgment Debtors should not be made to lose the property, in aforesaid circumstances.
12. The learned counsel also relied upon ruling in the case of M. Noohukan Vrs. Bank of Travancore & another, reported in 2008 ALL SCR 1334.
In the above ruling, it is held that the execution of sale, setting aside of, on deposit of decretal amount. Application for setting aside sale filed when execution proceeding posted for an order ::: Uploaded on - 12/12/2017 ::: Downloaded on - 13/12/2017 02:04:24 ::: 9 J-CRA-71-14.odt confirming the sale, application rejected. In revision, the High Court set aside the sale. Application for extending time for depositing the amount required rejected by the High Court - Challenge, the Hon'ble Supreme Court while issuing notice passed conditional order. Amount deposited as per such condition. Bank and auction purchaser permitted to withdraw the amount. Appeal disposed of with terms.
In view of the above rulings, the applicants are entitled to deposit the entire decretal amount with interest in the Executing Court for satisfaction of the decree. The applicants also could be directed to deposit for payment to the purchasers sum equal to 5% of the purchase money, as per the provisions of Order 21 Rule 89 (a) of C.P.C.
13. The learned counsel for the non-applicants relied upon the ruling in the case of Ram Karan Gupta Vrs. J.S. Exim Limited and others, reported in (2012) 13 SCC 568.
In view of the above ruling, it is held that auction sale of immovable property in partition suit. Payment of bid amount by Demand Drafts. Sale held not vitiated for non-depositing bid amount in cash. On the facts and circumstances of the case, above ruling is made not applicable.
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14. The learned counsel for the non-applicants also relied upon the ruling in the case of Annapurna Vrs. Mallikarjun and another, reported in (2014) 6 SCC 397.
In view of the above ruling, it is held that time for making requisite deposit in the court, reiterated is the same as prescribed under Article 127 of the Limitation Act for filing application for setting aside the court sale i.e. 60 days from the date of sale. Non- deposit within that period would result in dismissal of application. Hence, sale restored.
In view of above ruling, the Court has confirmed the sale by issuing certificate of sale in favour of the auction purchasers and therefore, the Executing Court has dismissed the application filed under Order 21 Rule 89 of the CPC. The Hon'ble High Court has allowed the writ petition and matter was remitted back to the Executing Court for fresh disposal of the application under Order 21 Rule 89. The Hon'ble Supreme Court has held that though there is no prescribed period under Order 21 Rule 89 of the CPC by filing application or to the required deposit. However, Article 127 of the Limitation Act provides 60 days. In the absence of required deposit made by the Judgment Debtors within the time mandated by law, the Executing Court does not have any ::: Uploaded on - 12/12/2017 ::: Downloaded on - 13/12/2017 02:04:24 ::: 11 J-CRA-71-14.odt option, but to reject the application and allow the appeal and set aside the order of the High Court. On the facts and circumstances of the case, this ruling is also not made applicable to the present case.
15. After considering the submission of respective sides and material placed on record as well as legal provisions, I am of the view that the learned Executing Court has committed an error while rejecting the application Exh.148 filed by the applicants / Judgment Debtors. The learned Executing Court should have accepted the D.D. of Rs.50,000/- at that time requested by the applicants. The said application (Exh.148) was filed on 06/03/2014. Now, interest will have to be calculated from the date till amount deposited before the Executing Court for full satisfaction of the decree.
16. The decree holder as well as Judgment Debtor to calculate amount to the full satisfaction of the decree. The Judgment Debtors are directed to deposit the same in the Executing Court. The applicants / Judgment Debtors are also directed to deposit the amount for payment to the auction purchasers sum equal to 5% of the purchase money before the Executing Court.
17. With these directions, the order dated 08/07/2014 passed by the Civil Judge, Senior Division, Daryapur below Exh.148 in ::: Uploaded on - 12/12/2017 ::: Downloaded on - 13/12/2017 02:04:24 ::: 12 J-CRA-71-14.odt R.D. No.8/92 is quashed and set aside. The Civil Revision Application is disposed of accordingly. No order as to costs.
JUDGE Choulwar ::: Uploaded on - 12/12/2017 ::: Downloaded on - 13/12/2017 02:04:24 :::