Sarwan Singh vs D.J.& Others
2011 Latest Caselaw 2563 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?(Judgment reserved on 4.2.2011) AFR
 
(Judgment delivered on 7.7.2011
 

 
Case :- WRIT - C No. - 22854 of 1990
 

 
Petitioner :- Sarwan Singh
 
Respondent :- D.J.& Others
 
Petitioner Counsel :- Santosh Kumar
 
Respondent Counsel :- S.C.,Anupam Kulshrestha,R.P.Goyal
 

 
Hon'ble Sibghat Ullah Khan,J.

Heard learned counsel for the parties.

One Bhajori mortgaged his agricultural land on 6.7.1967 in favour of respondent nos. 3 and 4 in this writ petition i.e. Nawab Singh and Mahendra Singh. Subsequently, Bhajori transferred the mortgaged property (mortgagor's right) in favour of petitioner on 10.7.1967. As mortgage money was not paid hence respondent nos. 3 and 4 filed Original suit no.115 of 1970 for recovery of money. The suit was decreed on 28.1.1971. Thereafter, execution application was filed which was registered as execution case no.35 of 1971. In the said execution mortgaged property was sold on 8.5.1972 and respondent no.3 himself purchased the property as he was the highest bidder.

At this juncture it may be mentioned that under Order 21 Rule 72 C.P.C. decree holder was not permitted to bid for or purchase the property in execution. However, through Allahabad amendment of 24.7.1926 the prohibition was deleted. Thereafter C.P.C. was amended in 1976. The Supreme Court held that the amendment made by the Allahabad High Court being repugnant to the main C.P.C. was no more enforceable. However, in the instant case property had been purchased in 1972 by one of the decree holders and at that time there was no prohibition.

Petitioner filed objections against auction sale under Order 21 Rule 90 C.P.C. which was registered as Civil Misc. Case No.40 of 1972. The said case was rejected on 30.4.1974. Against the said order petitioner filed Civil Misc. Appeal No.188 of 1974 which was dismissed on 23.9.1982 by XIIth Additional District Judge, Agra. Certified copy of the said judgment has been annexed alongwith Supplementary affidavit filed on 4.2.2011 by the respondent. In the appeal stay order had been granted. However, there is some dispute between the parties regarding continuance of stay order till the decision of the appeal or its communication to the Executing court. During pendency of appeal, Executing court/IIIrd Additional Civil Judge, Agra passed an order on 1.3.1982, copy of which is Annexure-1 to the writ petition. The order is to the effect that:

"Seen report of office 74-C. There is no stay of execution proceedings. Defendant to pay poundage money within 15 days."

Before the last sentence of the above order there was another sentence to the following effect:

"Sale is confirmed. Sale dated 8.5.1972 is confirmed. Execution application struck off in full satisfaction."

However, this sentence was afterwards scored off. Annexure-1 to the writ petition contains another order of 12.4.1982 to the effect that:

"Stay order received from XII Additional District Judge. Let proceeding be stayed till 26.4.1982. Put up after 26.4.1982."

Thereafter on 7.10.1982 i.e. after two weeks from the date of dismissal of appeal directed against order of the Executing court rejecting petitioner's objection under Order 21 Rule 90 C.P.C., petitioner filed an application under Order 34 Rule 5 C.P.C. before the executing court for depositing the entire money. Tender was passed on the same date and an amount of Rs.21,984.70 was deposited on the same date. It appears that an amount of Rs.1,000/- had already been deposited (apart from Rs.21,984.70). The executing court on 13.7.1990 passed order contained in Annexure-4 to the writ petition to the effect that as sale had already been confirmed on 1.3.1982 hence application of the petitioner under Order 34 Rule 5 C.P.C. was not maintainable. Against the said order petitioner filed revision which was dismissed on 30.7.1990. Copy of the said judgment is contained in Annexure-5 to the writ petition. Through this writ petition the orders passed by the revisional court dated 30.7.1990 and order passed by the Executing court dated 13.7.1990 have been challenged.

Learned counsel for the petitioner has specifically invited the attention of the court to Annexure-6 to the writ petition which was an application by decree holder auction purchaser Nawab Singh ? respondent no.3 dated 18.10.1982 praying for passing of the order for confirmation of sale. In Annexure-4 to the writ petition, impugned order passed by Executing Court/IInd Additional Civil Judge, Agra, it is mentioned that in the order dated 1.3.1982 the sentence confirming the sale was afterwards scored off and the cutting was initialled by the then executing Court. The revisional court rejected the revision summarily by 18 or 19 lines order. Revisional court did not decide the main dispute and did not give any reason for dismissing the revision apart from observing that reliance placed by the applicant in revision on A.I.R. 1984 Madras 334 was mis-placed.

Order 21 Rule 92 and Order 34 Rule 5 C.P.C. are quoted below:

Order 21 Rule 92. Sale when to become absolute or be set aside - (1) Where no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute :

[Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection.]

(2) Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within [sixty days] from the date of sale, [or in cases where the amount deposited under rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale]:

Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.

[Provided further that the deposit under this sub-rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002.]

(3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.

(4) Where a third party challenges the judgment-debtor's title by filing a suit against the auction-purchaser, the decree-holder and the judgment-debtor shall be necessary parties to the suit.

(5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree-holder to refund the money to the auction-purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the Court otherwise directs, be revived at the stage at which the sale was ordered].

"Order 34 Rule 5. Final decree in suit for sale.- (1) Where, on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under sub-rule (3) of this rule, the defendant makes payment into Court of all amounts due from him under sub-rule (1) of rule 4, the Court shall, on application made by the defendant in this behalf, pass a final decree or, if such decree has been passed, an order-

(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree,

and, if necessary,-

(b) ordering him to transfer the mortgaged property as directed in the said decree,

and, also, if necessary,-

(c) ordering him to put the defendant in possession of the property

(2) Where the mortgaged property or part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the defendant, in addition to the amount mentioned in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent. of the amount of the purchase-money paid into Court by the purchaser.

Where, such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase -money paid into Court by him, together with a sum equal to five per cent. thereof.

(3) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in sub-rule (1) of Rule 4."

In AIR 2000 SUPREME COURT 1148 "Kharaiti Lal v. Raminder Kaur" it has been held that even if sale has been confirmed still during pendency of appeal against order rejecting objections under Order 21 Rule 90 CPC, deposit can be made by the judgment debtor for availing the benefit of Order 34 Rule 5 C.P.C. In the said case sale was confirmed on the next day of rejection of objections under Order 21 Rule 90 C.P.C. In the said case reliance was also placed upon "U. Nilan v. Kannayyan" AIR 1999 SUPREME COURT 3750. It was also noticed in the said authority that in the earlier authority of U. Nilan reliance had been placed upon Maganlal, Appellant v. M/s. Jaiswal Industries, Neemach AIR 1989 SUPREME COURT 2113 in which it was held that the sale does not become absolute or irrevocable merely on passing of an order of confirmation of the sale under Order 21 Rule 90 CPC but it would attain finality on the disposal of the appeal filed against order refusing to set aside the sale. However, in V.K.P. Chettiar vs. R. Gaunder 2001 S. C. 2186 it has been held that even though during pendency of appeal against the order of confirmation of sale, judgment debtor is entitled to make deposit under Order 34 Rule 5 C.P.C. however, in case appeal is dismissed, the deposit would become meaningless as the amount deposited during pendency of appeal can not relate back to a point prior to confirmation of sale.

However, the main question involved in this writ petition is as to whether specific order confirming the sale under Order 21 Rule 92 C.P.C. was required or not. There is no doubt that before filing appeal (Civil Misc. Appeal No. 188 of 1974) no specific order of confirming the sale had been passed. In the following authorities it has been held that there must be an order confirming the sale and without such an order the sale will not automatically get confirmed;

- A.I.R. 1947 Allahabad Page 400

- A.I.R.1934 Calcutta Page822

- A.I.R. 1937 Madras Page 560

- A.I.R. 1960 Patna Page 378

- 1983 Kerala L.T. 81

- 1990 (2) Kerala L.T. 716 (DB)

The Supreme Court in Mohammad Khalil vs. Kamrudeen 1996 A.I.R. S.C.W. 3984: 1996 A.L.J. 1903 has held that sale becomes absolute only after its confirmation and confirmation of sale also makes title of purchaser complete.

In view of the above the contrary view taken in Sawan Mal Vs. Shib Dayal and others A.I.R. 1915 Lahore Page 9 and Shashi Bhushan Mitra vs. Ram Lal Mitra A.I.R. 1977 Calcutta Page 351 holding that formal order of confirmation is not necessary to give the purchaser valid title, if in substance, and in-fact, the court did confirm the sale cannot be followed.

Moreover the fact that specific order of confirmation of sale was passed on 1.3.1982 and then it was scored off clearly shows that the Executing Court had applied its mind and decided not to confirm the sale on that date. Further in the same order dated 1.3.1982 defendant was directed to pay poundage money within fifteen days. In case the intention of the court was to confirm the sale or to treat the sale as confirmed then there was no sense in directing the defendant to pay poundage money within fifteen days.

Accordingly, I do not agree with the view of the courts below that sale was specifically confirmed or stood confirmed on 1.3.1982.

Accordingly, the deposit made by the defendant ? petitioner was even though beyond time in accordance with Order 21 Rule 90 C.P.C. but it was within time under Order 34 Rule 5 C.P.C..

Writ petition therefore deserves to be allowed.

However, equities deserve to be adjusted for two reasons. Firstly writ petition is equitable jurisdiction. Secondly, the plaintiff-respondent was unduly harassed due to delayed payment by the petitioner (even though on technical ground it has been held to be within time in the earlier part of this judgment). The money of the respondent no.3 is blocked since May, 1972 i.e. for more than 39 years.

In the authority of the Supreme Court reported in Shanti Devi vs. State of U.P. A.I.R. 1997 Page 3541 which was also a case directed against auction sale while granting stay order judgment debtor had been directed to deposit Rs.1 lakh which was further directed to be invested in short term deposit.

In para 26 of the said authority directions for utilisation of the said amount were issued which included the following direction:-

"The amount deposited by the purchaser shall be returned to her together with interest at 12% from the date of deposit."

Accordingly, impugned orders as well as auction sale dated 8.5.1972 are set aside on the condition that petitioner pays interest (which may also be treated to be damages) at the rate of 15% per year on Rs.23,000/- within two months to respondent no.3 ? Nawab Singh by depositing the same before Executing Court. The moment the deposit is made the said amount of interest alongwith Rs.22,984.74 deposited by the petitioner shall be handed over by the Executing Court to respondent no.3. If respondent no.3 had deposited the auction money then the same shall also be returned to him.

In case the aforesaid amount by way of interest/damages is not deposited by the petitioner within two months, this writ petition shall be deemed to have been dismissed.

Writ petition is disposed of accordingly.

Order Date :- 7.7.2011

RS