Ram Jawai And Ors. vs Shakuntala Devi And Ors.
1993 Latest Caselaw 221 Del

JUDGMENT

S.C. Jain, J.

(1) This case has a chequered history. Shri Bhag Mal Jain,, deceased defendant/ judgment Debtor, who is now represented by his legal representatives as judgment debtors, was the owner of property No. 2659 constructed on plot Nos. 226 and 227, Block L, Gali Nos. 2and 3, Beadonpura, Karol Bagh, New Delhi which was mortgaged by him for Rs. 94,000 with Balkishan Dass, plaintiff decree holder by means of a deed dated 19th September, 1958 registered on 24th September, 1958.

(2) In the suit filed by Balkishan Dass, on the basis of this mortgage, a preliminary decree was passed under order 34 Civil Procedure Code by Shri S.S. Kanwar, Sub Judge, Delhi, but all the reliefs claimed by plaintiff were not granted. He, therefore, filed an appeal which was accepted and a preliminary decree under Order 34, Rule 4 Civil Procedure Code was passed on 31st August, 1970 by this Court granting four months time to the judgment debtor to pay the decretal amount. It was further ordered that in case of his failure to do so, the plaintiff-decree holder would be entitled to apply for final decree and obtain a direction for sale of the mortgaged property or a sufficient part thereof and recover the decretal amount. The defendant- judgment debtor did not make payment as per judgment and decree dated 31st August, 1970 and thereafter the decree holder filed Omp No. 13 of 1971 on 29th January, 1971 claiming ' that a sum of Rs. 1,76,718.88 besides interest from 1st January, 1971 up to the time of realisation was still due to him and that the preliminary decree passed by this Court on 31st August, 1970 be made final and the mortgaged property be directed to be sold and the sale proceeds be applied for satisfaction and payment of the decretal amount.

(3) There has been a protracted litigation regarding this property since 1971 but after dismissal of various applications filed by one Shri Harbans Lall the mortgaged property was auctioned on25thJune, 1973 and it was purchased by M/s Delhi Packaging Private Limited for consideration of Rs. 1,40,000 in the court auction. Shri Harbans Lall had filed objections on the plea that he had purchased this property in a court auction held on 14th December, 1964 in execution of a decree-Jatinder Prakash Vs. Bhag Mal Jain and Ors for Rs. 54,000 the sale was confirmed on 14th January, 1966 and a sale certificate was issued in his favor on 6th October, 1966. One Shri Vidya Sagar had also filed objections. The objections filed by Shri Harbans Lall and Shri Vidya Sagar were, however, dismissed holding that Harbans Lall had only purchased the right and interest of the judgment debtor, Shri Bhag Mal Jain i.e. he purchased the right to redeem the mortgaged property. It was further held that the suit property stood mortgaged with Shri Balkishan Dass, the decree holder earlier to its sale in the case of Jatinder Prakash Vs. Bhag Mal Jain and others.

(4) The appeals filed against those judgments dismissing the objections filed by Shri Harbans Lall and Shri Vidya Sagar were also dismissed. The preliminary decree dated 31st August, 1970 passed in favor of the decree holder Shri Balkishan Dass was made final on 12th August, 1971 and the property was auctioned on 25th June, 1973 and purchased by M/ Delhi Packaging Private Limited, being the highest bidder and he deposited the sale proceeds. The sale was confirmed and sale certificate was issued. Possession of the property could not however, be obtained due to various objections filed by Mr. Harbans Lall and others. In February, 1981 the auction purchaser M/s Delhi Packaging Private Limited made an application for recovery of possession of the premises from the occupants of the property. That application is still pending disposal as so many applications were filed on behalf of the legal representative of Shri Bhag Mal Jain, judgment debtor on various grounds which are as under:-

1.I.A. No. 2356 of 1981 filed by J.D. No. I under Order 9 Rule 13 read with Section 151 Civil Procedure Code for setting aside the ex-parte decree dated 12.8.1971.

2.I.A. No. 2357 of 1981 filed by J.D. No. 1 under Section 151 Civil Procedure Code for stay of the proceedings.

3.I.A. No. 2484 of 1981 filed by J.D. No.1 under Order 21, Rule 90 and Section 47 read with Section 151 Civil Procedure Code for setting aside the sale held on 25.6.1973 in respect of the said property.

4.I.A.No.2487of 1981 filed by J.D.No.1 under Section 151 Civil Procedure Code for stay of all the proceedings in Omp No. 13 of 1971.

5.LA. No. 4460 of 1981 filed by J.D. Nos. 2,3,4 & 7, who arc also the legal representatives of the deceased Shri Bhag Mal Jain, under Order 21, Rule 90 Civil Procedure Code for setting aside the auction sale held on 25.6.1973.

6.I.A. No. 4461 of 1981 filed by J.D. Nos. 3 and 4 under Order 9, Rule 13 Civil Procedure Code for setting aside the ex parte decree dated 12.8.1971.

7.I.A. No. 1441 of 1982 filed by J.D. Nos. 2,3,4 & 7 under Order 39, Rules I and 2 Cpc for restraining the auction purchaser from transferring, selling, or alienating the property purchased by him in the said auction.

(5) By this Order I am going to dispose of all these applications. I have heard learned counsel for the patties and gone through the record.

(6) Regarding the applications filed by J.D. No. 1 i.e. Smt. Shakuntala Devi being I.A. Nos. 2356, 2357, 2486 and 2487 of 1981, the main contention of her learned counsel is that the final ex parte decree for sale and the consequential auction sale of the immovable property in dispute took place contrary to the mandatory provisions of law, and as such the said auction sale stands vitiated. According to him, no notice whatsoever of the said application under Order 34, Rule 5 Civil Procedure Code was served upon the applicant which was mandatory in nature. The applicant was not served with the notice of the said proceedings. The alleged service on the applicant as fell as on the other judgment debtors was not sufficient and proper in the eyes of law. No notice of proclamation was given to the applicant and other judgment debtors. Before fixing the date of auction the decree holder should have been directed to take appropriate proceedings in execution by way of an application as required under Order 21, Rule 11 Civil Procedure Code. No proceedings under Order 21, Rule 11 Civil Procedure Code having taken place, the proclamation and the sale have resulted in a void sale. The proclamation of sale did not contain the description of the property its measurement and there had been material irregularity, illegality and fraud in publishing and conducting the sale and the same has caused substantial injury to the applicant and other judgment debtors.

(7) The decree holder as well as the auction purchaser contested all these applications and filed written replies alleging therein that these applications are not maintainable in law and are the abuse of the process of law. All the judgment debtors were duly served in accordance with law and they had the knowledge of the proceedings. The final decree was made as far back as on 12th August, 197l and the property was sold on 25th June, 1973 and after the dismissal of various objections the sale was confirmed and sale certificate was issued to the auction purchaser who has become the owner of the property. Out of the amount deposited, a sum of Rs.l lakh has already been paid to the decree holder and the balance amount still remains to be paid. These applications are hopelessly barred by time and have been filed on the mala fide grounds at the behest and instigation of Shri Harbans Lall, who had exhausted all his remedies up to the highest Court and could not succeed in getting the sale set aside. The executing court cannot go behind the decree and the executing court has to execute the decree as it stands.

(8) Learned counsel for the auction purchaser argued that these applications for setting aside the ex parte decree and the sale are not maintainable in the present circumstances of the case. He drew my attention towards various facts which are apparent on record. Shri Balkishan Dass, whose legal representatives are smt. Ram Jawai Devi and other decree holders, in the year 1959 had filed a suit against Shri Bhag Mal Jain for recovery of Rs. 94,000 advanced by him to Shri Bhag Mal Jain under a deed of mortgage plus interest 5740.31 which suit for recovery of Rs. 99,740.91 was registered as Suit No. 21/ 60 in the Court of Shri Shamsher Singh Kanwar, Sub Judge, 1st class, Delhi. The property mortgaged was plots No. 226 & 227, W.E.A. karol Bagh, Block L.Naiwala, Delhi and the building thereon bearing No. 2659, Beadonpura, Gurudwara Road, Karol Bagh, New Delhi. Shri Bhag Mal Jain died inseptember, 1961 and the applicant, Smt. Shakuntala Devi was substituted as his legal representative along with other sons and daughters of the deceased. All the legal heirs of Shri Bhag Mal Jain contested the suit and ultimately on 26.9.1963 a preliminary decree for payment of the principal sum of Rs. 94,000 plus interest Rs. 5740.31 and in default of payment for sale of the mortgaged property was passed by the said Court. On appeal the High Court on 31.8.1970 further ordered to pay interest on the principal amount of Rs. 94,000 at the rate of 7-1/2% per annum from the date of suit and till date of decree and future interest at 6% per annum plus cost of the suit. Four months time was granted to the judgment debtors to pay the decretal amount, but the judgment debtors did not pay the decretal amount not only within the period of four months, but even thereafter and as such a final decree was passed against the judgment debtors on 12.8.1971. The applicant, Smt. Shakuntala Devi was personally served and that no application for setting aside the ex-parte decree lies on her behalf. Even the application under Order 21, Rule 90 Civil Procedure Code does not lie for setting aside the sale in the present circumstances of the case. All the mandatory provisions of law have been followed and there has not been any illegality and if there is any irregularity that has been cured and on that account the sale cannot be set aside. He also argued that all these points were also taken by Shri Harbans Lal in his application for getting aside the sale under Order 21, Rule 90 Civil Procedure Code and they were rejected even up to the highest Court and now these judgment debtors cannot be allowed to reopen the case on the same grounds. The auction purchaser has been deprived of the use of this property for which he had deposited the sale price much earlier. The judgment debtors and the decree holders have colluded together to deprive the rights of the auction purchaser which had accrued to him as far back as on 25th June, 1973.

(9) Rule 13 of Order 9 Civil Procedure Code deals with setting aside of ex-parte decree against defendant. The second proviso has been added to the Rule to ensure that Court should not set aside the decree merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of bearing and had sufficient time to appeal and answer the plaintiff's claim. In this case as per the record Smt. Shakuntala Devi was in the knowledge of these proceedings and her signatures appear on the notice issued in Omp No. 13/71 in.token of having received the same. The date mentioned in the notice is 20th April, 1971. On that day, the Court has mentioned in its order that summons issued to Smt. Shakuntala Devi, Ms. Asha alias Gulli and Mr. Rajinder and Mr. Ravinder, respondents have been served, but they are absent despite service, as such they are proceeded ex-parte. In view of this judicial record, it does not lie in the mouth of Smt. Shakuntala Devi, the applicant, to say that she was not served with the summons. She was very much in know of these, proceedings and when Mr. Harbans Lal Naseem has exhausted all his remedies on the same points which she has now taken, she has been made to file these applications after a lapse of about 11 years. These applications are hopelessly time barred and no explanation has been given as to why these applications have been filed after such.a long delay. Even otherwise, there is no merit in the pleas taken in her applications for setting aside the ex-parte decree or setting aside the sale. The decree was passed as far back as on 31st August, 1970 and the property was sold on 25th June, 1973 and after the dismissal of various objections raised by Mr. Harbans Lall and Mr. Vidya Sagar, the sale was confirmed and the sale certificate was issued to the auction purchaser, who has become the owner of the property after depositing the sale price and confirmation of the sale and issue of the sale certificate. Even Rs. 1 lakh have been withdrawn by the decree holder in satisfaction of part of his decree. These applicationes at this stage for setting aside the ex-parte decree and for setting aside the sale are wholly misconceived, mala fide and deserve to be dismissed.

(10) Order 21, Rule 90 Civil Procedure Code is meant to set aside sale on the ground of irregularity or fraud. It provides that where any immovable property has been sold in execution of a decree, the decree holder, or the purchaser, or any other person entitled to a share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. There is nothing on record to show and prove that there is any fraud or any material irregularity in the said sale. There is also nothing on record to show and prove that the applicant has sustained substantial injury by reason of such irregularity or fraud. The applicant could have taken all these pleas before the date on which the proclamation was drawn up, but she kept silent for a couple of years and when all the objections filed by Mr. Harbans Lal Naseem on such grounds were dismissed finally, then she woke up probably at the instance of Shri Harbans Lal Naseem and filed the application under Order 21, Rule 90 Civil Procedure Code for setting aside the sale, which has been filed on mala fide grounds. Order 21, Rule 92(1) Cpc reads as under:- "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."

(11) In this case the objections taken by Mr. Harbans Lall and Mr. Vidya Sagar by filing applications under Order 21, Rule 90 Civil Procedure Code on the same grounds were already dismissed finally and this lady, Smt. Shkuntala Devi, the present applicant did not file any application either under Order 21, Rule 89, or Rule 90 or Rule 91 Civil Procedure Code earlier, meaning thereby that the sale had become absolute. The sale in favor of the auction purchaser had become absolute on 4th September, 1978 and thereafter, the sale certificate was also issued in his favor. That sale certificate was challenged by Mr. Harbans Lall and his plea was dismissed by a Division Bench of this Court on 9th April, 1979. Allowing this applicant to take such type of pleas again and again challenging the sale would amount to abusing the process of law.

(12) The Punjab amendment as applicable to Delhi provides in Order 21, Rule 90 Cpc that no objection which should have been raised before the sale was conducted is open now. Hence, any defect in the proclamation under Order 21, Rule 66 cannot be used in these proceedings to attack the sale. This is the effect of the proviso added to Order 21, Rule 90 which reads as follows:- "PROVIDED further that no such sale shall be set aside on any ground which the applicant could have put forward before the sale was conducted."

(13) The record in this case shows that the originally sale was to be conducted in August,1971 and eventually it took place in June, 1973. For various reasons the sale was postponed for almost two years and, therefore, any defect appearing in the proclamation could have been brought to the notice of the Court. For this reason the sale cannot be challenged on the ground that notice under Order 21, Rule 66 Civil Procedure Code was not given and various details in the proclamation are defective. Thus auction is not invalid and cannot be set aside under Order 21, Rule 90 Civil Procedure Code. I, therefore, dismiss both the applications filed by Smt.Shakuntala Devi being I.A. No 2356 of 1981 under Order 9. rule 13 for setting aside the ex parte decree and I.A. No. 2486 of 1981 under Order 21, Rule 90 read with Section 151 Cpc for setting aside the sale which took place on 25th June 1973 with costs, which I assess at Rs.5,000.00 . The other applications being I.A. No. 2357 of 1981 and 2487 of 1987 are Only with respect to the stay of the proceedings in Omp No.13 of 1971 and after the dismissal of both the above applications, these applications also stand dismissed having no merit. The auction purchaser has been deprived the use of the property in question, though the sale took place on 25th June, 1973 and he had deposited the sale price long ago.

(14) Regarding the applications moved by J.D. Nos. 2,3,4 and 7, who are the children of Smt.Shakuntala Devi, J.D.No.1 being I.A.Nos.4460 of 1981 under Order 21, Rule 90 Cpc for setting aside the auction sale, I.A. No. 4461 of 1981 under Order 9, Rule 13 Civil Procedure Code for setting aside the ex parte decree and I.A. No. 1441 of 1982 under Order 39, Rules 1 & 2 Cpc for restraining the auction purchaser from transferring, selling or alienating the suit property; the record shows that these applications were dismissed in default by Chawla, J on 11th September, 1984 by observing as under:- "IT appears that the Judgment Debtors are not interested to pursue these applications particularly when the auction sale has been confirmed and the possession has already been delivered to the auction purchaser. In fact they have no interest in the property now. Their applications d.A.No. 4460/81,4461/81 & 1441/82) are hereby dismissed for non-prosecution."

(15) Later on, on the applications moved by these judgment debtors Chawla, J however, restored these three applications on payment of Rs.200.00 per application vide Order dated 5th December, 1984, but as per the record these judgment debtors did not comply with the order of the court aad did not pay the cost as ordered by Chawla, J on 5th December, 1984 meaning thereby the Order passed by Chawla, J dismissing the said applications for non prosecution on 11th September, 1984 still exists. Even otherwise, I find no merit in these applications filed by J.D. Nos. 2,3,4 & 7. These are hopelessly barred by time and they have not been able to satisfy me as to why they have come to the Court for setting aside the ex parte decree so late. Even there is nothing on record to show and prove or even to indicate that they have been prejudiced by any irregularity or fraud. Though, as observed earlier, as per the record, the sale was to take place in August, 1971, but it actually took place in June, 1973. For various reasons the sale was postponed for almost two years and therefore, there was plenty of time to bring any defect or irregularity in the proclamation of sale to the notice of the Court. For this reason, the sale cannot be challenged on the ground that notice under Order 21, Rule 66 Civil Procedure Code was not given and various details in the proclamation were defective. These applications filed by these judgment debtors also stand dismissed. Ordered accordingly.