Polychem Ltd. vs Bhushan Grover
2008 Latest Caselaw 771 Del

JUDGMENT

S. Ravindra Bhat, J.

EA 673/2007

1. In these proceedings, the decree holder of the applicant seeks confirmation of a sale order through proclamation of Court.

2. The facts necessary for a decision are that the decree holder had sued the defendant/judgment debtor, in CS(OS) 1546/1996, before this Court. The suit was decreed against the defendant, Shri Bhushan Grover (hereafter referred to as JD) on 13.7.2001 for Rs. 35,24,805.57 paise with pendente lite and future interest @ 18% per annum. The present execution proceedings were brought into Court on 20.12.2001. Among others, the decree holder sought attachment of immovable property bearing Municipal Nos. J-9/45, Rajouri Garden, New Delhi-110027, owned by the judgment debtor.

3. This Court, by an order dated 17.1.2002 attached the property. The judgment debtor entered appearance and sought time to explore the possibility of amicably resolving the dispute. Later his wife, Ms.Archana Grover, filed an application, i.e. EA 441/2002, objecting to the maintainability of the execution proceedings, and objecting to the attachment. Notice was issued on that application on 1.10.2002.

4. There was no appearance of either the decree holder or objector on 6.11.2003. The entire proceedings was, therefore, dismissed for non- prosecution. The decree holder later moved an application, i.e. EA836/2003. The notice was issued to the judgment debtor, returnable on 18.3.2004 The Court restored the execution proceedings on 18.3.2004, recording as follows:

18.03.2004

Present: Ms. Abha Malhotra for the Decree Holder.

EA No. 836/2003 in EX P. No. 4/2002

The execution petition and EA No. 441/2002 were dismissed in default on 6th November, 2003 as none had appeared for the Decree Holder. The Judgment Debtor was not appearing in the proceedings regularly on three dates prior to the date when the petition as well as the application were dismissed in default. Accordingly, there is no need to issue notice of this application of the Judgment Debtor.

Considering the averments made in the application, the petition as well as EA No. 441/2002 stand restored to its original number. The application stands disposed of.

EX P No. 4/2002 and EA No. 441/2002

List again on 18th May, 2004, for further orders.

R.C.Chopra, J.

March 18, 2004

5. This Court, by its order dated 27.7.2004, drew the schedule for proclamation of sale; notice was directed to be published in the newspapers on 30.8.2004 On 20.9.2004, the auction sale took place, as scheduled. The property was auctioned for Rs. 10,60,000/- (Rupees ten lakhs sixty thousand only). 25% of the amount was paid on the date of auction, i.e. 20.9.2004 and the balance was paid on 1.10.2004 The said amount has been deposited in Court.

6. Subsequently, on 18.10.2005, again on account of non-appearance of the parties, the execution proceedings were dismissed. However, this Court restored the proceedings by its subsequent order dated 2.12.2005. The Court also issued notice to the auction purchaser and judgment debtor, on the same date. The subsequent proceedings on 2.2.2006, 20.4.2006 show that counsel for the auction purchaser was present. However, the decree holder had to take steps for serving the judgment debtor through publication under Order V Rule 20 CPC.

7. On subsequent dates of hearing, counsel for the Objector, Mr. Karunesh Tandon appeared in the proceedings. In the meanwhile, yet another development took place. The judgment debtor, in spite of attachment of the property, apparently, transferred it to a third party. In the circumstances, the Court directed the Objector to be present by its order dated 5.11.2007. On 15.11.2007, the Court after considering the materials on record, passed the following order:

The objector is not present even today despite directions. It seems that she is willfully avoiding her appearance in the court despite repeated directions. Under these circumstances, the order dated 5th November, 2007 and subsequent order dated 14th November, 2007 have become operative. The objections of the objector stands dismissed for non-prosecution.

8. In the above circumstances, learned Counsel for the decree holder urges that this Court independently of its contempt action against the judgment debtor, should proceed to confirm the sale. Counsel has relied upon the provisions under Order XXI Rule 92 CPC for this purpose. Learned Counsel has relied upon for this purpose on the judgment reported as Harbans Lal v. Smt. Ram Jawai Devi 16 D.L.T. (1979) 109.

9. The provisions of Order XXI Rule 92 CPC, reads as follows:

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 shalfl 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].

10. In the present case, the above narrative would show that the decree holder sought for execution of the decree dated 13.7.2001 for Rs. 35,24,805.51 paise with pendente lite and future interest @ 18% per annum. This Court, by its order dated 17.1.2002, in the present case, attached the immovable property of the judgment debtor. On no less than two occasions, sale proclamations were issued. Eventually, sale of the said property took place through Court ordained auction, on 20.9.2004 The auction purchaser's bid for Rs. 10,60,000/- was accepted, subject to confirmation by this Court. The judgment debtor has in spite of the service in these proceedings not appeared nor chosen to object the proceedings. The only objection to the attachment by the judgment debtor's wife, i.e. the Objector - Ms. Archana Grover, (aside from the vicissitudes of her application initially the same being dismissed as she was unrepresented on several dates of hearing), was also dismissed. The proceedings also show that her statement was separately recorded by this Court on 17.3.2005. She was subsequently represented by counsel. On 15.11.2007, her objections were dismissed for non-prosecution. On all the subsequent dates, i.e. 29.11.2007, 19.12.2007, 29.1.2008 and 24.4.2008, there have been no appearance on her behalf or indeed on behalf of the judgment debtor; no attempt was made to object to the attachment or the sale.

11. In HARBANS LAL's case (supra), this Court noticed the imperative nature of the provision, in particularly, the backdrop of the amendments introduced by the Code of Civil Procedure, 1906. By that amendment, a proviso was introduced to Order XXI Rule 92(1) CPC. The Court construed the proviso as an injunction upon the Courts not to confirm the sale where an attachment is under objection till such objections are finally disposed of. This was to avoid complications on a later date.

12. A plain textual reading of Order XXI Rule 92(1) CPC would show that the Court has to confirm the sale in which event, it would become absolute. The contingencies where the Court is relieved of such an obligation are firstly where applications under Rule 89 (to set aside the sale, on deposit of the amount by a person claiming interest in the property sold); secondly, setting aside the sale on ground of fraud or irregularity (Rule 90); thirdly, the application by a purchaser to set aside the sale on account of judgment debtor not having any saleable interest, such as title (Rule 91) exist.

13. The last exception had been provided through proviso as noticed in Harbans Lal case (supra), where if objection to attachment is pending final disposal before the Court sale confirmation is not permissible. In the present proceedings, the order-sheet in this case shows that there are no objections pending. Therefore, on a textual and plain interpretation of Order 21 Rule 92 CPC, this Court has no choice, but to confirm the sale. This view is supported by the decision of the Supreme Court in Janak Raj v. Gurdial Singh and Hukumchand v. Bansilal .

14. In view of the above discussion, the sale has to be confirmed. Consequently, the auction sale dated 20.9.2004, is hereby confirmed, under Order XXI Rule 92(1) CPC.

15. It is open to the auction purchaser to seek steps for securing possession of the premises. The decree holder is at liberty to withdraw the amount lying deposited in the Court.

List on 20th August, 2008.