Himachal Pradesh High Court
Punjab And Sind Bank vs Himachal Lithographers And Ors. on 6 May, 2002
Equivalent citations: III(2003)BC521
Author: R.L. Khurana
Bench: R.L. Khurana
JUDGMENT R.L. Khurana, J.
1. In execution of the decree dated 13.8.1984 passed in Civil Suit No. 37 of 1984, the house property of the applicant-judgment-debtor, Major Vikram Singh Anand, comprising House No. 2-A/1, Housing Board Colony, Jakhu, Shimla, was attached and sold in public auction pursuant to the order of the Court. The auction took place on 11.1.2000. The house property of the applicant-judgment-debtor was sold for Rs. 6,15,000/- in favour of one Amarjeet Singh, son of Scwa Singh resident of B-6, Strawberry Hills, Shimla (hereinafter referred to as the auction-purchaser). Such sale was confirmed by this Court on 7.3.2000.
2. On 7.6.2000, the present application came to be filed by the applicant-judgment-debtor under Section 47 read with Order XXI Rule 85 and Order XXI Rule 90, Code of Civil Procedure for setting aside the sale of the house property in favour of the auction-purchaser. The sale dated 11.1.2000 is sought to be set aside on the following grounds:
(a) Failure of the auction purchaser to deposit the entire sale consideration within the stipulated period of fifteen days as provided under Order XXI Rule 85, Code of Civil Procedure;
(b) Though the minimum sale price was fixed by this Court at Rs. 6,00,000/- the auction proceedings were commenced with the floor price fixed at Rs. 4,75,000/-at which bids were started and the house property was ultimately sold for Rs. 6,15,000/-;
(c) The sale7auction proceedings were not carried out in accordance with taw and in consonance with the proclamation order drawn up by this Court; and
(d) There was connivance between the decree-holder and the auction-purchaser in the conduct of sale.
3. The application is being resisted and contended by the auction-purchaser who vide his reply dated 25.10.2000 pleaded that the auction was held in accordance with law and in consonance with the terms and conditions laid down by this Court in the proclamation order. The entire sale consideration was deposited in Court within the stipulated period and the sale stood validly confirmed. The sale certificate also stands issued in his favour. Collusion between the decree holder and auction-purchaser was denied. Objections as to limitation and maintainability of the application were also raised.
4. On the pleadings of the parties, the following issues were framed on 24.31.2000:
(1) Whether the sale is in violation of the provisions of Order XXI Rule 85, C.P.C. as alleged? --OPO (2) Whether the sale was conducted in violation of the settled terms'? --OPO (3) Whether the application is within time? --OPO (4) Relief.
5. I have heard the learned Counsels for the parties and have also gone through the record of the case. My findings on the above issues are as under:
Issue No. 35. Article 127 of the Limitation Act, 1963 provides for a period of limitation of sixty days beginning from "the date of sale" for a suit to set aside a sale in execution of the decree, including any such application by a judgment-debtor.
As stated above, the sale in the present case took place on 11.1.2000. The present application came to be made on 7.6.2000, that is, 148 days after the date of sale. Therefore, the present application is on the face of it barred by time.
The prescribed period of limitation under Article 127, Limitation Act, 1963 for making an application to set aside a sale cannot be extended in view of the specific prohibition contained in Section 5 of the said Act. Sections, which deals with "extension of prescribed period in certain cases" reads :
"5. Extension of prescribed period in certain cases.--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation.--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."
A bare reading of the above provisions shows that Order XXI, Code of Civil Procedure, as a whole, relating to extension has been excluded from the purview of the section. Therefore, none of the applications contemplated under any rule of Order XXI, Code of Civil Procedure would attract Section 5, Limitation Act, 1963.
6. It was contended on behalf of the applicant judgment-debtor that even though the provisions contained in Section 5, Limitation Act, 1963 cannot be pressed into service in the present case, the prescribed period of limitation would get extended under Section 17, Limitation Act, 1963 (corresponding to Section 18, Limitation Act, 1908). Section 17, Limitation Act, 1963, insofar as it is material for the present case, reads :
"17. Effect of fraud or mistake.--(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,--
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him;
the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production :
Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which :
(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase, know or have reason to believe, that any fraud had been committed, or
(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or
(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.
(2) ......."
7. While pleading that the present application is within time the specific case put forth by the applicant judgment-debtor vide paras 14 and 15 of his application is to the following effect:
"14. That the applicant/judgment-debtor is preferring the present application within time from date of knowledge. The applicant humbly submits that he left for Allahabad on 16.2.2000 in connection with his pension case. On 17.2.2000, when the applicant reached Allahabad to process his pension case, he was arrested by the police in a case under I.P.C. which had been falsely made out against the applicant/judgment-debtor and he was detained in prison upto 27.5.2000. After his release from prison, the applicant reached Shimla on 1.6.2000. On 3.6.2000, the applicant applied for inspection of the file and found that the sale had not been conducted in accordance with law and that further vitiated by fraud which had been committed on the applicant/JD, the certificate issued by the Naini Central Jail, Allahabad is annexed herewith and marked as Annexure-A/1 to this petition.
15. That according to the proclamation, the applicant/judgment-debtor was required to be present in the Court on 23.2.2000 in order to ascertain as to whether the sale had been conducted or not. As submitted above because of the detention of the applicant in prison from 17.2.2000 till the date of his release on 27.5.2000, the applicant was under a disability inasmuch as he could have in any manner ascertain about any facts about the present case. The applicant further humbly submits that on 17.2.2000 when he was arrested, he was detained in the police station of Allahabad Cantt."
8. Order VI Rule 4, Code of Civil Procedure, provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms prescribed in Rule 3, particulars (with date and items, if necessary) shall be stated in the pleading.
9. Rule 6 of Order VII, Code of Civil Procedure, further provides that where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground(s) upon which exemption from such law is claimed.
10. The question which arises for determination is whether the provisions contained in Order VI Rule 4 and Order VII Rule 6, Code of Civil Procedure, are applicable to an application made under Order XXI Rule 90, Code of Civil Procedure.
A similar question arose before a Division Bench of Madras High Court in Muttalooru Bojjanna v. Roya Kristappa, AIR 1947 Mad. 268, and it was held :
"We see no reason why the principle of Order VII Rule 6, Civil Procedure Code should not be applied to an application to set aside a sale in execution and it seems to be improper to treat an apparently time barred application as being within time by calling in aid Section 18, Limitation Act, 1908, when the pleading does not show how the exemption under the section is available to the petitioner."
In Smt. Brajabala Das v. Radha Kamat Das and Ors., AIR 1969 Ori. 63, it was held that an applicant under Order XXI Rule 90, Code of Civil Procedure, who invokes the aid of Section 17, Limitation Act, 1963, to save the bar of limitation must plead and prove fraud and that the principles underlying Order VI Rule 4 and Order VII Rule 6, Code of Civil Procedure, regarding pleadings apply equally to applications.
11. I am in full agreement with the above ratio and hold that the provisions of Order VI, Rule 4 and that of Order VII Rule 6, Code of Civil Procedure, are equally applicable to an application made for setting aside a sale under Order XXI, Rule 90, Code of Civil Procedure.
The Hon'ble Supreme Court in Syed Shah Gulam Ghouse Mohiuddin and Ors. v. Syed Shah Ahmad Mohiuddin Kamisul Qadri(dead) by his Legal Representatives and Ors., AIR 1971 SC 2184, dealing with the provisions of Section 18, Limitation Act, 1908, he must establish that there has been fraud and that by means of such which provisions are corresponding to the provisions contained in Section 17, Limitation Act, 1963 has held that if the plaintiff desires to invoke the aid of Section 18, Limitation Act, 1908, fraud he has been kept away from the knowledge of his right of sue or of the title whereon it founded.
There is a distinction between the fraud which vitiated the sale and the fraud by which the judgment-debtor was kept in ignorance of his right to make the application [See Thommen Thomas v. Jonn Simon, AIR 1957 Trav. Co. 153]. For the purpose of Section 17, Limitation Act, 1963, the fraud by which the judgment-debtor was kept in ignorance of his right to make the application, is material. However, if the fraud antecedent to the sale is of such a nature as to suffice the requirement of Section 17, Limitation Act, 1963, then such fraud cannot be dismissed from consideration as having had its origin earlier [See Mathen Simon of Mukalal v. Quseph Looka of Makkiyil and Ors., AIR 1964 Ker. 88].
It has been observed by the Allahabad High Court in Mt. Sarvi Begum v. Ram Chander Sarup, AIR 1925 All. 778, as under :
"Owing to the fraudulent concealment of the proceedings by the decree-holder all knowledge of the proceedings upto the time of sale was withheld, from the petitioner, then so long as she did not come to know of the sale, the effect of the fraud continued, and the only conclusion to which we can come is that she had been kept from the knowledge of the sale in consequence of the initial fraud practised by the decree-holder. It is only after she became aware of the sale that she came to know of her right to apply. Her case is that she did not come to know of this right earlier because of the fraud originally practised by the decree-holder."
The above observations find support from Abdul Jamil v. Ambia Khatun, AIR 1939 Cal. 663, where referring to a fraudulent concealment, the Court held :
"It would be necessary to show that through the fraudulent conduct of the decree-holder or such other person against whom the application has been directed, the judgment-debtor had been prevented from having any knowledge of the sale proclamation or the fact that a sale had actually taken place."
12. In view of the above legal provision, the party seeking the benefit of Section 17, Limitation Act, 1963, has to plead and prove that due to fraudulent conduct of the decree-holder or such other person against whom the application has been directed, such party had been preverted from having any knowledge of the execution proceedings and/or the sale.
A perusal of the pleadings set out in the application in paras 14 and 15, quoted above shows that the applicant-judgment-debtor has claimed exemption of limitation solely on the ground of his arrest and detention at Allahabad. It is not his case that due to any fraudulent acts on the part of either the decree-holder or the auction-purchaser he was prevented from having knowledge of the execution proceedings and/or the sale.
13. The applicant while appearing as OW-1 also has not attributed any fraudulent act either to the decree-holder or to the auction-purchaser which prevented him from having the knowledge of the execution proceedings and/or the sale. He has admitted that the sale was fixed for 11.1.2000 and that he was present in his house. He has deposed that no sale was conducted at the spot. He has stated :
"No proceeding of auction of the house was conducted in my presence. The date fixed for return of the warrant of sale was 23.2.2000. In the meantime, I had to go to Allahabad with regard to my pension case. On the basis of some allegation against me, 1 was arrested at Allahabad in a case registered against me. I was arrested on 17.2.2000. I remained in custody till 27.5.2000. On my release from jail, I was given the history sheet regarding my detention in jail. The original thereof is mark-A. Immediately on my return to Shimla, I inspected the record of the case. Attached property was sold for Rs. 6,15,000/-. The reserve price of the property was fixed by the Court as Rs. 6,00,000/-. The auction is shown to have started at Rs. 4,75,000/-. The above facts came to my notice subsequent upon the inspection of the record by me. As per the proceedings of the auction, three bidders are shown to be present save and except the successful bidder i.e., auction-purchaser, the addresses of the other two bidders were not found mentioned in the record. The property could have been sold on the much higher price as the auction started had the reserve price fixed by the Court and had proper proclamation been issued with regard to auction."
14. Therefore, in the present case there are neither pleadings nor evidence as to fraud in order to attract the provisions of Section 17, Limitation Act, 1963.
The record of the ease shows that the applicant judgment-debtor was fully aware of the execution proceedings and he has been contesting the same. His earlier objections against the attachment of his house property were dismissed and such dismissal was upheld by the Hon'ble Supreme Court.
15. In the absence of pleadings and evidence as to fraud for seeking the benefit of Section 17, Limitation Act, 1963, the benefit of the said section cannot be granted to the applicant and the present application having been made beyond the prescribed period of limitation, is time barred. The issue is decided against the applicant-judgment-debtor.
Issue No. 1The learned Counsel for the applicant-judgment-debtor relying upon the decision of this Court in State Bank of India v. Smt. Mohini Devi and Ors., 1999(1) Sim. LC291, contended that no period of limitation is prescribed for an application under Order XXI Rule 85, Code of Civil Procedure, for the setting aside the sale on the ground of failure of the auction-purchaser to deposit the sale consideration less the amount of 25% deposited under Rule 84 of Order XXI, within 15 days of the sale. It was further contended that due to non-compliance of mandatory provisions of Order XXI Rule 85, Code of Civil Procedure, the sale was a nullity.
In State Bank of India v. Smt. Mohini Devi (supra), it was held by this Court as under :
(a) No application is required to be made for setting aside the sale on the ground of non-compliance of the provisions contained in Rule 85 of Order XXI, Code of Civil Procedure;
(b) Since no application is required to be made the period of limitation as prescribed under Article 127, Limitation Ad, 1963, could not come into play; and
(c) Once the auction-purchaser fails to deposit the remaining amount of sale consideration within the stipulated period in terms of Rule 85 of Order XXI, Code of Civil Procedure, the sale becomes nullity. If confirmation of invalid sale has been made, it would be an invalid confirmation and would have no effect. Confirmation of invalid sale would not render such sale to be valid.
16. Therefore, the question which arises for determination whether the sale consideration stood deposited in terms of Rule 85 of Order XXI, Code of Civil Procedure.
The sale, in the present case, took place on 11.1.2000 for a sum of Rs. 6,15,000/-. A sum of Rs. 1,54,000/- representing 25% of the bid amount was deposited by the auction-purchaser with the auctioning officer at the spot on 11.1.2000 in terms of Rule 84 of Order XXI, Code of Civil Procedure. To this extent, there is no dispute between the parties.
17. In terms of Rule 85 of Order XXI, Code of Civil Procedure, the auction-purchaser was required to deposit the balance sale consideration of Rs. 4,61,000/- within fifteen days from the date of sale, that is, 11.1.2000. In other words, the balance sale consideration was required to be deposited on or before 26.1.2000.
A perusal of the record shows that the balance sale consideration of Rs. 4,61,000/- was tendered and deposited by the auction-purchaser in the Registry of this Court on 22.1.2000 well within fifteen days period as stipulated under Rule 85 of Order XXI, Code of Civil Procedure.
18. In view of the fact that the sale consideration was deposited within the stipulated period, mere has been no violation of the provisions of Order XXI Rule 85, Code of Civil Procedure. The issue is decided against the applicant-judgment-debtor.
Issue No. 2In view of the findings recorded under issue No. 3 above that the application is not within time, the present issue has become redundant and the same is disposed of accordingly.
Relief As a result, the present application is dismissed with costs quantified at Rs. 2,500/-. The auction-purchaser only would be entitled to such costs.