Dharam Pal And Anr vs Puran Singh And Anr
2024 Latest Caselaw 6571 P&H

Punjab-Haryana High Court

Dharam Pal And Anr vs Puran Singh And Anr on 22 March, 2024

Author: Anil Kshetarpal

Bench: Anil Kshetarpal

                                        Neutral Citation No:=2024:PHHC:043134



E.S.A.No.52 of 2013 (O&M)               -1-                    2024:PHHC:043134

        IN THE HIGH COURT OF PUNJAB AND HARYANA
                     AT CHANDIGARH

                                                   ESA No.52 of 2013 (O&M)
                                                   Date of Order:22.03.2024

Dharam Pal and another
                                                                      .Appellants
                                     Versus

Puran Singh and another                                            ..Respondents

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present: Mr. Parvinder Singh, Advocate for the appellants.

Mr. Avnish Mittal, Advocate for respondent no.2.

ANIL KSHETARPAL, J

1. The judgment debtor has filed this execution second appeal to

challenge the correctness of the Executing Court's order dated 19.11.2011,

which has been upheld by the First Appellate Court on 30.08.2013.

2. An interesting issue with respect to interpretation of Order XXI

Rule 92 (2) of the Code of Civil Procedure, 1908 (hereinafter referred to as

the 'CPC') has come up for adjudication before this court.

3. In order to comprehend the issues involved in the present case,

the relevant facts, in brief, are required to be noticed.

4. Sh. Puran Chand's suit for recovery of Rs.20,000/- was decreed

against defendant nos.1 and 2 on 12.04.2001. The court ordered the

payment of the amount along with interest @ 6% per annum from the date

of filing of the suit. In order to implement the decree, the decree holder filed

the execution petition on 17.08.2001. The judgment debtor's plot measuring

12½ marlas located in village Kansal, Tehsil Kharar was auctioned on

12.10.2002, against a highest bid of Rs.75,000/-. The judgment debtor filed

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an application on 31.10.2002, i.e. within a period of 30 days for setting aside

the sale deed upon deposit of the decretal amount i.e Rs.20,000/- along with

amount of interest of Rs.8500/- and also deposit of 5% of the total purchase

money. However, inadvertently due to bonafide clerical and arithmetical

mistake, the calculation of 5% amount was calculated on the decretal

amount and not on the purchase money. Thus, the judgment debtor

deposited Rs.29,925/-.

5. Notice of the application filed by the judgment debtor was

issued to the decree holder. The decree holder filed a reply and he did not

make an objection with respect to amount deposited as per Order XXI Rule

89 CPC. Ultimately, the judgment debtor entered into a settlement. The

judgment debtor gave a statement that he has no objection if the decree

holder is allowed to withdraw the decretal amount, however, the amount of

Rs.1425/- be given to the auction purchaser. The Executing Court passed

the order in terms of the settlement but also proceeded to confirm the sale

and directed issuance of sale certificate in favour of the auction purchaser.

The judgment debtor filed an appeal which was allowed and the order

passed by the Executing Court directing issuance of sale certificate to the

auction purchaser was set aside while remanding the case back to the

Executing Court to pass a fresh order. During this entire period neither the

judgment debtor nor the auction purchaser ever pointed out that there is an

error in calculation, and the amount deposited qua 5% purchase money is

deficient. However, on 19.11.2011, the Executing Court dismissed the

application under Order XXI Rule 89 CPC on the ground that 5% of the

purchase money was required to be deposited, whereas 5% of the decretal

amount has been deposited. An appeal against the aforesaid order has been

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dismissed by the First Appellate Court.

6. This bench has heard the learned counsel representing the

parties at length and with their able assistance perused the paper book.

7. The learned representing the appellant while drawing the

attention of the court to sub-rule (2) of Order XXI Rule 92 CPC submits that

the legislature in order to remove the difficulty faced by the judgment debtor

has made a provision for extending the period if the deficiency is due to

clerical or arithmetical mistake on the part of the depositor. He submits that

by 1976 amendment carried out in CPC, the Legislature has widened the

scope of the provision and permitted deposit of the amount and in this case

the deficient amount was deposited immediately once it was pointed out on

19.11.2011.

8. On the other hand, the learned counsel representing the

respondent submits that as per sub-rule (2) of Order XXI Rule 92 CPC, the

deposit is required to be made within a period of 60 days from the date of

sale and such period is not extendable under any circumstances.

9. This court has considered the submissions of the learned

counsel representing the parties.

10. At this stage, it shall be appropriate to extract Order XXI Rule

89 and 92 CPC for better comprehension:-

89. Application to set aside sale on deposit.- (1) Where

immovable property has been sold in execution of a

decree, any person claiming an interest in the property

sold at the time of the sale or at the time of making the

application, or acting for or in the interest of such

person,] may apply to have the sale set aside on his

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depositing in court,--

(a) for payment to the purchaser, a sum equal to five per cent of the purchase money, and

(b) for payment to the decree holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree holder. (2) Where a person applies under rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule. (3) Nothing in this rule shall relieve the judgment debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale.

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 1 [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

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shall be brought by any person against whom such Order is made.

(4) Where a third party challenges the judgment debtor 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."

11. It is evident that under Order XXI Rule 89 CPC, any person

having interest in the property sold at the time of the sale or at the time of

making the application, or acting for or in the interest of such person, is

entitled to apply to have the sale set aside, the court auction on his

depositing in court, a sum equivalent to 5% of the purchase money for

payment to the purchaser and the amount specified in the proclamation of

sale for payment to the decree holder, whereas, Order XXI Rule 92 CPC

provides the situations when the sale shall become absolute or be set aside.

12. Sub-rule (2) of Order XXI Rule 92 CPC is divided in two parts.

The first part provides that when application under Order XXI Rule 89 has

been made and is allowed, the deposit shall be made within a period of 60

days from the date of sale. The second part provides that where the amount

deposited under Rule 89 is found to be deficient owing to clerical or

arithmetical mistake on the part of the depositor, the same can be made good

within such time as may be fixed by the court and the court shall make an

order setting aside the sale.

13. In this case, admittedly, the judgment debtor deposited

Rs.29,925/- within a period of 60 days from the date of sale. As already

noticed, thereafter the matter remained pending in the court. Neither the

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decree holder nor the auction purchaser ever pointed out the mistake in the

calculation. It was for the first time, the arithmetical error was pointed out

before the Executing Court on 19.11.2011. Before the First Appellate Court

the judgment debtor filed an application for permission to make good the

deficiency on 23.12.2011, which has not been decided yet.

14. The object of incorporating amendment in sub-rule (2) of Order

XXI rule 92 is to obviate the difficulty which may be faced by the depositor

if there is a clerical or arithmetical mistake in calculating the amount. The

provision is categoric. There is no ambiguity. The period of 60 days is

provided for depositing the amount as calculated by the depositor. The

aforesaid limitation is not provided for making good the deficiency owing to

clerical or arithmetical mistake i.e. it does not create a bar of 60 days in

cases where the deficiency is due to clerical or arithmetical mistake. The

court has been given enabling power to extend the time. The second part of

sub-rule (2) does not provide that the outer limit for deposit is 60 days.

15. Keeping in view the aforesaid facts and discussion, the

appellant is directed to deposit the amount within one month, from the date

of this order. Once the aforesaid amount is deposited, the auction sale of the

judgment debtor's properties shall stand set aside. Since, a significant

amount of time has elapsed and the decree holder is not at fault, therefore,

the judgment debtor is directed to compensate the auction purchaser. Hence,

the judgment debtor is directed not only to make good the deficiency but

also pay interest @ 9% per annum from the date the auction purchaser

deposited the amount of Rs.75,000/- in the Court.

16. With these observations, the appeal is allowed.

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17. All the pending miscellaneous applications, if any, are also

disposed of.

March 22, 2024                                        (ANIL KSHETARPAL)
nt                                                         JUDGE


Whether speaking/reasoned               :YES/NO
Whether reportable                      :YES/NO




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