Patna High Court
Kewal Singh vs Umesh Mishra on 24 March, 1983
Equivalent citations: AIR1983PAT303, AIR 1983 PATNA 303, 1983 BBCJ 444
JUDGMENT Bageshwari Prasad Griyaghey, J.
1. This is an appeal by the decree holder of Execution Case 42 of 1978 of the Subordinate Judge's Court Bhabua, against the order D/- 8-11-1979 passed by the Subordinate Judge on an application filed by the respondent under Order 21. Rule 58, Civil P. C. (hereinafter referred to as the Code) in that execution case making objection against the attachment of the property which is 2 1/2 decimals of Land in Bhabua town, which is given in the Talika of the execution case. The Executing court, namely, the learned Subordinate Judge allowed the claim of the respondent, who had made the claim under Order 21, Rule 58 of the Code, and had released the Talika property from the attachment and had set aside the Sale by that order against which order this appeal has been filed.
2. The aforesaid execution case had proceeded for realisation of costs passed in a suit against the judgment-debtor. Sri Brajballabh Mishra, and the property in question was given in Talika for realisation of the amount by the sale of the property. The respondent, Umesh Mishra, who is brother of the judgment-debtor, filed an application under Order 21, Rule 58 of the Code against the attachment claiming that the property in question did not belong to the judgment-debtor but to him. It was claimed that though the property was allotted in partition between the two brothers, the judgment-debtor and the applicant, to the share of the judgment-debtor but that subsequently by a deed of gift of 1973 (which was exhibit-5 in the miscellaneous case) the judgment-debtor had made a gift of the property to the applicant. It was claimed that the applicant had title and possession of the property and the judgment-debtor had none and, therefore, preferred the claim. The Executing Court by order D/- 8-1-1979, after an evidence by both the parties, allowed the claim of the applicant holding that the property belonged to the applicant (the present respondent) and, therefore, ordered the Talika property to be released from attachment. It may be noted that in spite of the claim filed, the sale of the property had taken place in the meantime and, therefore, when the claim was allowed, the sale was also set aside by that order. It is against that order that this appeal has been filed by the decree-holder.
3. At the outset, on behalf of the appellant a point has been raised that the claim-petition filed by the respondent before the Executing Court was not entertain able as it was filed after the sale had already taken place. This argument has been based on the proviso to Clause (1) of Rule 58 of Order 21 which runs as follows :
"Provided that no such claim or objection shall be entertained -- (a) where before the claim is preferred or objection is made the property attached has already been sold..........."
When this appeal was first placed before a learned single Judge of this Court a doubt was created in the mind of the learned Judge as to the applicability of the above-mentioned proviso to that rule as to whether the above underlined word 'Sold' conceive a stage when the sale is ultimately, according to the procedure prescribed in Rule 92 of Order 21 confirmed and becomes absolute that it shall be deemed to be a "sale" complete and not before that. The doubt in the mind of the learned single Judge was that there is no decision laying down as to when a sale is complete and since the point is of importance it was referred to this Bench for decision. It may be mentioned, at this place, that though the point raised by the learned single Judge, in the present case, is as to when the 'sale' will be deemed to have been completed, but really that point that arises for decision in this case is to interpret the term "property already sold" in the above-mentioned proviso. The real point that falls for determination in this case is as to whether the term "property already sold" used in the proviso refers to the sale which is held by the Executing Court just by the act that the bid in the auction-sale is accented by the Court after deposit of the necessary purchase-money by the bidder, or the term used in that rule refers to the stage when the sale ultimately becomes absolute after it is confirmed after having gone into the processes up to Rule 92 of Order 21 of the Code.
4. But before starting to consider about the term 'sold' used in this Rule 58, a point has arisen as to whether this Rule 58, which has been incorporated in the present Code by the amending Act of 1976 would be applicable in the present case in relation to cases in Courts subordinate to the High Court of Patna or the Patna Amendment which was made in this Rule 58 before the amendment of the present Code by the Civil Code Amendment Act, 1976 would be applicable. It may be mentioned, at this place, that before the amendment of the present Civil P. C., the Patna High Court had made an amendment in Rule 58 as it stood before the Civil Code Amendment of 1976 and that Patna Amendment was substituted for the old Rule 58 in Order 21 of the Code. There is, how-
ever, some difference between the two rules, the Central Rule 58, as it stood then and the Patna Amendment which was to substitute the Central rule. A question has arisen as after the amendment of the Civil P. C. by 1976 Act, whether the old Patna Amendment to this Rule 58 would stand or the present Rule 58, the central rule, which has been incorporated by 1976 Amendment, would be deemed to have been made applicable for the Courts under the Patna High Court also. On this point it has been submitted on behalf of the appellant that the said Patna Amendment now stands abrogated by coming into force of the new Rule 58 by the Amendment of 1976. The ground submitted by the learned counsel for the appellant appears to be correct because it is contended that the Patna Amendment stands abrogated in view of Sub-section (1) of Section 97 of the Amendment Act 104 of 1976 (The Civil P. C. Amendment Act) which lays down as follows:
"Any amendment made, or any provision inserted in the principal Act by a State legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed."
In this connection reference may be made to Section 128 of the Code under which such amendments are made by the High Court. Section 128 provides that such rules framed by the High Court shall not be inconsistent with the provision in the body of this Code. At this place it may be mentioned that while in the Patna Amendment a different procedure with respect to the investigation of claim made under Rule 58 and its disposal and the forum of redress has been provided, which is different from the present amended central Rule 58 inasmuch as in the Patna Amendment there is a provision that the claim filed under Rule 58 shall be "Investigated" while in the present amended Central R, 58 the provision is that on such a claim being filed the claim will be 'adjudicated' by the Executing Court. In view of the difference between the nature of the decision an enquiry made on a claim-petition filed under Rule 58 between the Patna Amendment and the present amended Central Rule 58 (namely, that while in the former it was a claim to be 'investigated', in the latter it was to be 'adjudicated') a difference was also made in the forum of redress as in the former case after the decision made on such a claim in Rule 58 the forum prescribed is for filing a suit under Rule 63 while in the latter, namely, in the amended Central Rule 58, the decision given in such enquiry has the status of a decree, therefore there is a provision for an appeal against such an adjudication. Thus, it would be found that there are fundamental differences, which may be said to be strong inconsistency between the Patna amendment and the amended Central Rule 58 as amend-ed by the Act of 1976 and, therefore, the Patna Amendment really should be deemed to have been abrogated by coming into force of the Central Rule 58 by the Amendment Act of 1976. Such was also the view expressed by this Court in three cases, namely, in Subhas Chandra v. Har Govind Singh (AIR 1978 Pat, 260). Manuddin Khan v. Prasanta Kumar Roy (1979 BBCJ (HC) 650) and a third case which is a Bench decision in Sardar Sukhpal Singh v. Hira Lal Modi (1979 BLJR 588). Therefore, it is now settled view that the Patna Amendment, which was made to the old Rule 58, will stand abrogated by the Central Rule 58 which had been introduced by the Amending Act of 1976.
5. Reverting back to the point in question, which was taken up for decision in this case, as to whether the term 'sold' used in the proviso to Rule 58 would mean the stage of the sale when the auction-sale is accepted by the Court or it would mean the stage of the confirmation of the sale under Rule 92 when the sale is made absolute. The relevance of this interpretation is on account of the fact that this proviso provides that no claim-objection shall be entertained after the sale is made.
6. In the present case the order-sheet of the Executing Court shows that at first the sale was held on 9-5-1979 and thereafter on the same date the objection-petition under Order 21, Rule 58 was filed by the respondent, But the learned counsel for the respondent, at the out-set, has contended that the application of that proviso may not be applied in the present case as the stand was taken by the learned counsel that in fact, in the present case the objection-
petition of the respondent was filed even before the sale was actually held in the case. Therefore, before examining the matter as to the applicability of that proviso and the interpretation of the word "sold", it has first to be decided as to whether this contention of the learned counsel is valid or not. After having considered the materials avail-able on the record of the execution case, I am unable to agree with the learned counsel for the respondent to this position that the objection-petition was filed before the sale had actually taken place. This cannot be believed firstly because the records of the proceeding show otherwise. By referring to first order dt. 9-5-1979 passed in the execution case. I find that the sale had taken place on that day as the decree-holder had made a bid for the amount for Rupees 1,685/- which was accepted by the Court and the set-off petition and poundage-fee were filed, the challan was passed and it was adjourned to 25-5-1979 for receipt of the challan from the treasury showing the deposit, That order shows that the bid that was made by the auction-purchaser was accepted by the Court and that the sale was complete. Then by another order, a subsequent order of the same day, it appears that the respondent filed an objection-petition under Order 21. Rule 58 which was registered as Miscellaneous Case No. 19 of 1979. Along with that objection-petition, a separate petition was also filed by the respondent-objector that the property be released from attachment and from sale. That showed that the sale had already taken place. Besides that the Court in that order-sheet, it appears, the Presiding Officer, in his own pen, had added in the draft of that order-sheet that the confirmation of the sale (which had already taken place) would remain stayed till the enquiry in the matter on the application under Order 21. Rule 53. That order obviously shows that the sale had already taken place in the case before this objection-petition under Order 21. Rule 58 of the Code was filed by the respondent. In fact, this point was never raised by the objector before the Executing Court. If really his objection-petition had been filed a petition before the sale had taken place, the objector could have filed a petition before the Executing Court or could have made a verbal prayer that the sale be not held because he had already filed an objection-petition under Order 21. Rule 58 of the Code. No such prayer was made by the respondent before the Executing Court. This point was not raised even in the enquiry of the matter in the application under Order 21. Rule 58 of the Code because that is not mentioned also in the order under appeal. I find, on the other hand, that in this memo of appeal, the decree-holder (appellant) has asserted on affidavit that the sale had already taken place before the respondent had filed the objection-petition under Order 21, Rule 58 of the Code. I do not find that the respondent has filed any counter-affidavit against that. Therefore, from all the circumstances. I am unable to find anything, any material or circumstances, on the record to agree to the stand taken by the learned counsel for the respondent that the respondent had filed the objection-petition before the sale had taken place.
7. Then adverting to the main point under consideration, which is to interpret the term "property already sold" used in the proviso to Clause (1) of Rule 58, mentioned above, it may be again mentioned that the interpretation of the meaning of the term is relevant because that proviso provides that no objection shall be entertained after the property, which has been attached, has already been sold. The interpretation that is required to be made is as what does the term "already sold'' refers to as to the stage used in that term in the context of those words used in that proviso. I have examined this matter very carefully by making a careful study of such term or its equivalent use in the connected rules subsequent to Rule 58 of Order 21 and I find that the term "sold" used in that proviso definitely means the stage when the property is auction-sold by the Court and the bid is accepted by the Court and the term does not refer to the stage of the confirmation of the sale when it is made absolute under Rule 92, I have reasons for this view which I am presently stating. It may be seen that Rule 58 and subsequent rules which are relating to the attachment and the sale made in an execution proceeding use the terms "sold", "sale set aside", and "sale confirmed and made absolute". These three terms refer to three stages in relation to the Court sale. Rule 58 provides for the objection made before the property is "sold". Then Rule 64 and onward provides for the proclamation of sale. Then there are two headings: one with respect to the sale of movable property and other from Rule 82 with respect to the sale of immovable property. There are provisions that after the sale some persons, who have been provided under Rule 89, 90 and 91, can apply to the Court to set aside the sale on the grounds and in the circumstances mentioned in those rules. It has been provided in those rules that the Court may accept the prayer of those applicants and may 'set aside the sale'. Rule 92 is then very much relevant which provides that where such applications to set aside the sale under Order 89, 90 or 91 are disallowed or where no such application is filed, the Court will ultimately make an order confirming the sale and thereupon the sale shall become "absolute" Thus, it will be noticed that there are three stages, the first when the property is 'sold', then of the stage when the sale may be 'set aside', or if not set aside, the same will be confirmed and then the 'sale becomes absolute'. The sale becomes absolute under Rule 92. The implication of the term about the sale having been made absolute has been specifically provided in Section 65 of the Code which provides that where immovable property is sold in execution of a decree and such sale had become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold, and not from the time when the sale become absolute. Thus, this rule is pointer of the significance that though the sale is complete when it is ultimately made absolute but title to the purchaser vests from the date of the sale. It may be noticed, at this place, that there are uses of the two terms "property sold" and "sale becomes absolute" in this Section 65 and the two terms used in the same section clearly suggests the two stages as to the sale having been held, and the sale subsequently made absolute. But what I have to determine, in the present case is to find out the meaning of the term 'the property already sold' in the proviso to Rule 58, mentioned above. That term speaks of the "sale held", and not "sale having been made absolute", and as the distinction may be marked the former term used in Section 58 implies that that refers to the stage when the "sale was held" and not the stage which would come subsequently when the "sale is made absolute". I am supported of this view by two Bench decisions of this Court and a Bench decision of the Calcutta High Court. This point had come several times before the High Court at Calcutta since a long time and that High Court was of the view, in several old cases, that the bar of filing an objection-
petition under Rule 58 stands on the date when the sale is actually held and not the date when it is made absolute. And accepting that view a Bench decision of this Court, as long as in 1924, held in Most. Puhup Dei Kuar v. Ramcharitar Barhi (AIR 1924 Pat 76) that after the sale is held the attachment is ipso facto determined and the Court has no longer any jurisdiction to try the claim case under Order 21 Rule 58. At this stage, the Calcutta case, which is a Bench decision in Sasthi Charan Biswas Banik v.
Gopal Chandra Saha (AIR 1937 Cal 390) relying on a catena of decisions of this Court again held and confirmed the previous view that when a sale had actually taken place the Executing Court has no jurisdiction to entertain a claim or objection filed under Order 21. Rule 58. It may be mentioned, at this place, that in this Bench decision the same point was raised as has been referred to by the learned single Judge in this appeal as on the doubt that the sale really completes when it is made absolute and, therefore, the bar to file an objection under Rule 58 may perhaps stand after the sale becomes absolute and not when it is held but such a point was taken before their Lordships in that Bench decision which was rejected (vide report at page 392 second column). This point was again raised in a Bench decision of this Court in Janki Mohan v. Dr. S. Samoddar (AIR 1962 Pat 403) in which also it has been held that the objection-
petition under Rule 58 cannot be entertained if it is filed after the sale actually takes place, and that the same does not refer to the sale becoming absolute.
Therefore. I am of the view that the term "the property has been already sold" used in the proviso to Clause (1) of Rule 58 refers to the stage when the sale had taken place and does not refer to the stage when the sale becomes absolute.
8. Applying that principle to the present case. Rule 58 bars the entertainment of an objection-petition after the sale had taken place In the present case, on the circumstances and facts, stated above, I have found that the objection-petition was filed after the sale had taken place and, therefore, it was not entertainable in view of that proviso to Rule 58. That being so the objection-petition of the respondent, which was filed in the execution case, which the learned Executing Court had wrongly allowed after enquiry, should not have been entertained. The order of the learned Executing Court, by which it has allowed the application, is, therefore, set aside. The appeal is, therefore, allowed. The objection-petition (the claim-petition) is rejected as not maintainable. There shall be, however, no order as to costs.
B.P. Sinha, J.
9. I agree.