Bombay High Court
Harun Haju Suleman And Others vs M/S Girdharda Vitthaldas Devi ... on 12 December, 2017
Bench: A. D. Upadhye
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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
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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
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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
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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
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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
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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
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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
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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
