Hanmantraya S/O Sharanappa Kore vs Smt Mahadevi W/O Neelkantrao ...
2022 Latest Caselaw 74 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 4TH DAY OF JANUARY, 2022

                        BEFORE

        THE HON'BLE MR.JUSTICE E.S.INDIRESH


     WRIT PETITION No.202187/2014 (GM-RES)

BETWEEN:

HANMANTRAYA S/O SHARANAPPA KORE
AGE: 35 YEARS, OCC: AGRICULTURE
R/O JAWALGA (D), TQ. ALAND
DIST. GULBARGA
NOW RESIDING AT H.NO.9-587/6/123
PRASHANT NILAYA, SANTOSH COLONY
ALAND ROAD, GULBARGA-585103
                                         ... PETITIONER
(BY SRI VINAYAK APTE, ADVOCATE)

AND:

1.     SMT. MAHADEVI
       W/O NEELKANTRAO PATIL
       AGE: MAJOR, OCC: HOUSEHOLD
       R/O SHAHABAZAR, GULBARGA

2.     VIJAY KUMAR
       S/O NEELKANTRAO PATIL
       AGE: 23 YEARS, OCC: STUDENT
       R/O SHAHABAZAR, GULBARGA

3.     ASHOK KUMAR
       S/O GOVIND RAO KULKARNI
       AGE: 54 YEARS, OCC: AGRICULTURE
       R/O.H.NO.2-926/1, JAGATH
       GULBARGA-585102
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4.   SMT. SHOBHA
     W/O ASHOK KUMAR KULKARNI
     AGE: 48 YEARS, OCC: HOUSEHOLD
     R/O.H.NO.2-926/1, JAGATH
     GULBARGA-585102
                                      ... RESPONDENTS

(BY SRI SHIVANAND PATIL, ADVOCATE FOR R1 & R2;
 SRI VENKATESH C. MALLABADI, ADVOCATE FOR R3;
 R4-SERVED)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE
AT GULBARGA IN E.P.NO.804/2011 BY WAY OF ISSUING THE
WRIT OF CERTIORARI IN NATURE AND THE ORDER PASSED BY
THE TRIAL COURT IS PRODUCED AT ANNEXURE-B AND DIRECT
THE PRINCIPAL SENIOR CIVIL JUDGE AT GULBARGA TO
REFUND THE AMOUNT OF RS.6,62,000/- DEPOSITED BY THE
PETITIONER ON 23.02.2013 BY WAY OF ISSUING WRIT OF
MANDAMUS IN NATURE.


     THIS PETITION COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:-


                       ORDER

The petitioner herein has challenged the order

dated 05.09.2013 passed by Principal Senior Civil Judge

at Gulbarga in E.P.No.804/2011.

2. It is the case of the petitioner that

respondent Nos.1 and 2 herein filed Execution Petition in

E.P.No.804/2011 on the file of Principal Senior Civil

Judge at Gulbarga, for recovery of a sum of

Rs.24,80,986/- from respondent Nos.3 and 4/judgment

debtors. The trial Court passed an order of attachment

of property and accordingly, auction was conducted for

sale of agricultural land bearing Sy.No.5/2 situated at

Jawali (D) village. The petitioner herein has participated

in the auction conducted by the Execution Court and

purchased the agricultural land for a sum of

Rs.26,00,000/-. The petitioner is the highest bidder

offered to purchase the agricultural land. Thereafter,

the petitioner deposited 25% of the bid amount on

23.02.2013 to an extent of Rs.6,62,000/- before the

Execution Court. It is further averred in the writ petition

that since the petitioner has not deposited remaining

75% of the amount, the Execution Court conducted re-

auction in respect of the land bearing Sy.No.5/2 situated

at Jawali (D) village which belongs to respondent Nos.3

and 4 to recover the decreetal amount as the decree

holders filed Execution Petition who are respondent

Nos.1 and 2 herein. The petitioner has further stated

that there are certain civil proceedings in respect of the

subject matter of the land and in this regard RSA

No.7117/2013 is pending consideration before this Court

with regard to subject matter of the land and as such,

the petitioner though deposited Rs.6,62,000/- as 25% of

the bid amount, he did not pursue for completion of the

sale proceedings. In this regard, the petitioner has filed

application under Section 151 of CPC seeking refund of

the amount deposited by him on 23.02.2013 as per

Annexure-A. The Execution Court, after considering the

material on record by its order dated 05.09.2013,

dismissed the application filed by the petitioner herein.

Being aggrieved by the same, the petitioner has

preferred this writ petition.

3. The petitioner has also filed certified copies

of the entire order sheet in E.P.No.804/2011 on the file

of Principal Senior Civil Judge at Gulbarga and certificate

of sale of land made in favour of Raghuveer Singh S/o

Umrao Singh, resident of H.No.9-949/4/2 Kailash Nagar,

Near Choudeshwar School, Kalaburagi.

4. I have heard Sri Vinayak Apte, learned

counsel appearing for the petitioner and Sri Shivanand

Patil, learned counsel appearing for respondent Nos.1

and 2 and Sri Venkatesh C. Mallabadi, learned counsel

appearing for respondent No.3.

5. The learned counsel appearing for the

petitioner vehemently contended that no doubt the

petitioner herein has paid 25% of the bid amount

intending to purchase the suit schedule property through

auction made by the Execution Court, however,

thereafter, the petitioner came to know that there were

certain civil proceedings in respect of suit schedule

property and therefore, he did not pursue further

proceedings before the Execution Court. He further

contended that since the property in question has

already been sold in favour of Raghuveer Singh and

possession of the property has been given in favour of

the said purchaser (Raghuveer Singh), there is no

impediment for the trial Court to accept the prayer made

in the application for refund of Rs.6,62,000/- deposited

by the petitioner on 23.02.2013. In this regard, he

invited the attention of the Court to the order sheet of

the Execution Court dated 23.02.2013, 11.03.2013,

22.04.2013, 18.08.2018, 21.12.2018, 11.03.2019 and

18.04.2019 and argued that the execution Court has

committed blatant error in dismissing the application

filed by the petitioner.

6. Per contra, the learned counsel representing

the respondents oppose the writ petition by inviting the

attention of the Court to the provisions contained under

Order XXI Rules 85 and 86 of CPC. He further

contended that the trial Court after considering the

language employed under Order XXI Rules 85 and 86 of

CPC has rightly dismissed the application. He also

contended that if any interference is made by this Court

permitting the petitioner for refund of the amount which

had already been forfeited to the government, it would

be contrary to the provisions under Order XXI Rules 85

and 86 of CPC. The learned counsel further submitted

that attitude of the petitioner would clearly indicate the

fact that he intended to postpone the sale of suit

schedule property and the said conduct on the part of

the petitioner should be looked into before any

interference to be made insofar as the impugned order

is concerned. In this regard, he also invited the

attention of the Court to the judgment of the Hon'ble

Apex Court in the case of Manilal Mohanlal Shah and

others vs. Sardar Sayed Ahmed Sayed Mahmed

reported in AIR 1954 SC 349 and Balram son of

Bhasa Ram vs. Ilam Singh and others reported in

AIR 1996 SC 2781 and accordingly, he submitted that

the writ petition is liable to be dismissed as Execution

Court has rightly dismissed the application made by the

petitioner herein.

7. Having considered the rival contentions

raised by the learned counsel representing the parties, it

is not in dispute that perusal of the order sheet dated

23.02.2013 indicates that the petitioner herein

participated in the auction proceedings conducted by the

Court and he was declared as highest bidder for a sum

of Rs.26,50,000/- and in connection with the same, the

petitioner undertook to deposit a sum of Rs.6,62,000/-

and on the very same day, he deposited a sum of

Rs.6,62,000/- before the Execution Court. Perusal of

the order dated 14.03.2013 would indicate that the

petitioner herein sought for one month to complete the

sale proceedings and the same was opposed by the

decree holders before the Execution Court proceedings.

On 22.04.2013, the petitioner made an application for

advancement of the case and on the very same day, he

filed an application under Section 151 of CPC for refund

of 25% of the bid amount. Perusal of the order sheet

dated 18.08.2018 would substantiate the fact that bailiff

has filed report regarding spot sale dated 13.08.2018

stating that one Moinuddin S/o Mamesab and one

Guranna S/o Errappa Shiraval participated in the public

auction and Moinuddin was declared as highest bidder.

However, the order sheet further discloses the fact that

the Court sale was conducted on 18.08.2018 wherein

one Raghuveer Singh S/o Umrao Singh and Sunil

Chavan participated in the public auction and Raghuveer

Singh has been declared as highest bidder for a sum of

Rs.30,00,000/-. It is evident from the order sheet of

the Execution Court that the said Raghuveer Singh has

filed an affidavit to deposit 24% of the total bid amount

to an extent of Rs.7,50,000/- through cheque and

sought for permission to deposit the remaining amount

within fifteen days. The Execution Court accepted the

cheque dated 18.08.2018 with respect to 25% of the bid

amount subject to realization and thereafter, the said

highest bidder Raghuveer Singh was directed to deposit

the entire amount on or before 01.09.2018. In view of

the order dated 18.08.2018, Raghuveer Singh has

deposited the entire amount to the Court which is

reflected in the order sheet dated 01.09.2018. Pursuant

to the same, the Execution Court has issued Certificate

of Sale of Land in Form No.38 under Order XXI Rule 94

of CPC and accordingly, the said purchaser (Raghuveer

Singh) has become owner of the property in question.

However, the grievance of the petitioner is with regard

to refund of Rs.6,62,000/-. No doubt, the petitioner

herein has initially participated in the proceedings

however, due to the fact that the property in question is

the subject matter in other litigations stated supra, he

withdrawn from depositing remaining 75% of the bid

amount as per the order dated 23.02.2013. The

language employed in the Order XXI Rules 85 and 86 of

CPC reads as under:

"85. Time for payment in full of purchase-money.-

The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property:

Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72.

           86.    Procedure          in    default    of
     payment.-

In default of payment within the period mentioned in the last preceding rule, the deposit may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be re-sold, and the defaulting

purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold."

8. Perusal of the language employed in Rule 85

of Order XXI of CPC would make it clear that the

purchaser is bound to complete the entire transaction

within fifteen days from the sale of property. However,

the proviso to Rule 85 of CPC would enure to the benefit

of the purchaser for set off under Rule 72. Rule 86 of the

Order XXI of CPC would substantiate that if there is

default in making payment within fifteen days by the

highest bidder, the amount which is partly deposited

before the trial Court will have to be forfeited to the

government and thereafter, the Court is empowered to

go for further auction.

9. In the case on hand, the grievance of the

petitioner is that though he has deposited 25% of the

bid amount i.e., Rs.6,62,000/-, thereafter he came to

know that the property in question is a litigated property

and third party rights have been created in respect of

the property in question and therefore, he was not able

to complete the sale transaction. In the background of

the above facts, I have carefully considered the law

declared by the Hon'ble Apex Court in Manilal

Mohanlal Shah's case supra. Paragraph-11 of the said

judgment reads as under:

"11. Having examined the language of the relevant rules and the judicial decisions bearing upon the subject we are of opinion that the provisions of the rules requiring the deposit of 25 percent of the purchase-money immediately, on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon non-compliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser without depositing 25 per cent of the purchase- money in the first instance and the balance within 15 days. When there is no sale within

the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Non- payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. The very fact that the Court is bound to resell the property in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eye of law. We hold, therefore, that in the circumstances of the present case there was no sale and the purchasers acquired no rights at all."

10. I have also carefully followed the law

declared by the Hon'ble Apex Court in Balram's case

supra. Paragraphs-8 to 10 of the said judgment reads as

under:

"8. It is to be noted that the argument that it is only a material irregularity in the sale to attract Rule 90 instead of Rule 85 was expressly rejected; and it was clearly held that Rule 85 being mandatory, its non-

compliance renders the sale proceedings a

complete nullity requiring the executing Court to proceed under Rule 86 and property has to be resold unless the judgment-debtor satisfies the decree by making the payment before the resale. The argument that the executing Court has inherent power to extend time on the ground of its own mistake was also expressly rejected. In our opinion the contentions of learned counsel for the appellant are fully negatived by the decision of the Court.

9. We may also indicate that the persistent assertion on behalf that the shortage in deposit by the appellant was occasioned by a mistake of the executing Court in indicating the figure of the decretal amount due in the sale proclamation also has no sound basis. The provisions in Order XXI relating to sale of property beginning with Rule 64 clearly indicate the responsibility of the decree-holder in this behalf and his role in the drawing up of the sale proclamation. The executing Court proceeds with execution and draws up the sale proclamation on the

basis of information supplied by the decree- holder. Rule 66 of Order XXI is as under :-

"Proclamation of sales by public auction. -

(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.

(2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible-

(a) the property to be sold or, where a part of the property would be sufficient to satisfy the decree, such part;

(b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of the estate, paying revenue to the Government;

(c) any incumbrance to which the property is liable;

(d) the amount for the recovery of which the sale is ordered; and

(e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property :

Provided the where notice of the date for settling the terms of proclamation has been given to the judgment-debtor by means of an order under rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs :

Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given, by either or both of the parties.

(3) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by Sub-rule (2) to be specified in the proclamation.

(4) For the purpose of ascertaining the matters to be specified in the "proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto."

It is clear that the sale proclamation is drawn up by the executing Court after notice to the decree-holder, on an application for an order for sale made by the decree-holder which is to be accompanied by a statement signed and verified by the decree-holder in the prescribed manner and containing the matters required by sub-rule(2) to be

specified in the proclamation, which also includes " the amount for the recovery of which the sale is ordered." It follows that the 'amount for the recovery of which the sale is ordered' is stated in the sale proclamation on the basis of the duly signed and verified statement made by the decree-holder which accompanies the decree-holders application for an order of sale. The specification of the amount for the recovery of which the sale was ordered, in the sale proclamation being based on a statement made and verified by the decree-holder, it is not open to the decree-holder to claim that the was misled by any mistake of the Court in the specification of that amount. The blame, if any for the mistake lies squarely on the decree-holder. Moreover, the decree-holder knows best the amount to which he is entitled under the decree, and he does not have to depend on anyone else to furnish this information. A mistake for which the decree-holder himself is responsible cannot furnish a ground to the decree-holder to avert the adverse consequences on him of

his failure to comply with the mandatory requirement of Rule 85.

10. It is also to be noted that the duty to pay the full amount of purchase money within the prescribed period of 15 days from the date of sale of the property is cast on the purchaser by virtue of Rule 85 of Order XXI and therefore, the entire responsibility to make full compliance of the mandatory provision is his. The proviso to Rule 85 is enacted for the benefit of the purchaser when he is the decree-holder and is entitled to the advantage of any set off under Rule

72. The proviso giving this benefit to the decree-holder purchaser merely relieves him of the requirement of depositing that amount of which he is entitled to claim set off, but it does not relieve him of the duty to deposit the full amount taking advantage of the set off. Any mistake made while claiming the set off which results in failure to deposit the full amount of purchase money within 15 days of the date of sale renders the decree-holder purchaser liable to the same adverse

consequences which would ensue to any other purchaser due to non-compliance of Rule 85. No distinction is made between a decree-holder purchaser entitled to claim set off under Rule 72 and any other purchaser for the purpose of strict compliance with the requirement under Rule 85. The contentions of learned counsel for the appellant have no merit."

11. Applying the law declared by the Hon'ble

Apex Court stated above to the case on hand, though

the purchaser - Raghuveer Singh has purchased the

property through auction and the decree holders are

satisfied with regard to the claim made in the Execution

petition, reason for non-completion of the sale

proceedings by the petitioner was on account of the fact

that the property in question was a litigated property

and the proceedings were pending before this Court in

respect of the same property. Considering the law

declared by the Hon'ble Apex Court in Manilal

Mohanlal Shah's case supra when there is no sale

within the contemplation of these rules and the

proceedings having been completed, the sale made by

the Execution Court in favour of Raghuveer Singh is just

and proper. However, insofar as forfeiting 25% of the

amount i.e., Rs.6,62,000/- made by the petitioner is

concerned, though he has defaulted in completion of the

entire proceedings, for the reasons stated above, this

Court is of the opinion that taking into consideration the

peculiar facts and circumstances of the case that the

petitioner has bonafidely approached the Court to

purchase the suit schedule property however, he was

not able to complete the sale proceedings in view of the

fact that proceedings were pending consideration before

the competent Court, I am of the view that finding

recorded by the Execution Court is contrary to scope and

ambit of Order XXI Rules 85 and 86 of Code of Civil

Procedure. It is trite that the procedural laws have been

framed to advance substantial justice to the parties and

technicalities should not come in the way of extending

benefits to the litigant who approached the Court with

clear hands and lis is of bonafide in nature. Therefore,

this Court is inclined to accept the writ petition and set

aside the order dated 05.09.2013 passed in

E.P.No.804/2011 and allow the application filed by the

petitioner on 18.04.2013 vide Annexure-A to the writ

petition.

12. Though discretion has been conferred on the

Execution Court to exercise power under Order XXI Rule

86 of CPC, however, perusal of the order sheet would

indicate that no such discretion has been exercised by

the Execution Court to forfeit the amount paid by the

petitioner herein to the government. Therefore, I am of

the opinion that the judgments referred to above by the

learned counsel for respondents are not applicable to

the facts on hand. In that view of the matter, I am of

the view that the petitioner herein had benefit of Order

XXI Rule 86 of CPC.

13. Accordingly, the writ petition is allowed. The

impugned the order dated 05.09.2013 passed by the

Principal Senior Civil Judge, Gulbarga, in

E.P.No.804/2011 is hereby set aside. The application

filed by the petitioner on 18.04.2013 vide Annexure-A to

the writ petition is allowed and the petitioner is entitled

for refund of Rs.6,62,000/-.

Ordered accordingly.

Sd/-

JUDGE

NB*