Patna High Court
Mt. Raisunnissa And Ors. vs Mojibur Rahman And Ors. on 4 November, 1960
Equivalent citations: AIR1961PAT213, AIR 1961 PATNA 213
ORDER Raj Kishore Prasad, J.
1. These five applications, in revision, by Skh. Kafiluddin, a judgment-debtor, who is now dead, arise out of an equal number of application made under Order 21, Rule 90, Code of Civil Procedure, not by him but by Nurul Haq, one of the other two judgment-debtors, who is opposite party 4 in this Court, in each of the five execution cases, for setting aside the sales of different properties in each case.
2. What happened was this : One Jinat Ali had two sons, Nasiruddin, husband of Mt. Pano, opposite party 5, and Kafiluddin, the original petitioner before this Court, on whose death, his heirs have been substituted as petitioners. Nasiruddin had two sons, Abclul Haq, opposite parly 3, and Nurul Haq, opposite party 4. Abdul Haq had a son Sayeed Akhtar, who is the decree holder-opposite par'y 2. Sayeed Akhtar obtained five decrees against his father, Abdul Haq, his uncle, Nurut Haq, the applicant for setting aside the sales, and grand-uncle, Kafiluddin, the original petitioner, for arrears of rent in respect of five different holdings, Those decrees were executed separately and different properties were put to sale for realisation of the decretal amounts.
3. Civil Revision No. 253 of 1958 arises out of Execution Case No. 6 of 1953, in which 8.19 acres of land was sold for Rs. 60/- on the 5th February, 1954; Civil Revision No. 254 of 1958 arises out of Execution Case No. 8 of 1953, in which 2.61 acres of land was sold for Rs. 80/- on the 5th February, 1954; Civil Revision No. 2.55 of 1958 arises out of Execution Case No. 7 of 1953, in which. 56 bighas were sold for Rs. 90/- on the 7th December, 1953; Civil Revision No. 256 of 1958 arises out of Execution Case No. 435 of 1933, in which 1.48 acres were sold for Rs. 65/- on the 12th June, 1954;' and Civil Revision No. 2-37 of 1958 arises out of Execution Case No. 436 of 1953, in which 3 bighas and odd were sold for Rs. 137 on the 12th June, 1954.
4. In all the above five auction sales, the auction purchaser was one Mojibur Rahman, opposite party 1, the admitted brother-in-law of Abdul Haq, one of the judgment-debtors and the father of Sayeed Akhtar, the decree-holder, in other words, his own Mamu (maternal uncle).
5. All the above auction-sold lands were joint between the three judgment-debtors, namely Ab-
dul Haq, Mural Haq and Kafiluddin, and in each of the land sold Nurul Haq had an undivided four annas share and the other two had the remaining undivided twelve annas share.
6. Only Nurul Haq, one of the three judgment-debtors, made an application on the 27th November, 1954, for setting aside the entire sale, in each of these five cases, separately. He pleaded that he got knowledge of the sales on the 6th November, 1954, and, therefore, he could not make an application within the statutory period of limitation earlier. The executing Court allowed these applications of Nurul Haq on the 31st August, 1955, and set aside the sale in each of these five cases. The auction-purchaser, Mojibur Rahman, thereafter, took an appeal to the Court of appeal below, against the said order of the executing Court setting aside the sales.
7. During the pendency of the appeals in the Court of Appeal below, there was a compromise between the auction-purchaser, Mojibur Rahman, and Nurul Haq, the judgment-debtor-sole applicant, on the 27th January, 1956. This compromise was recorded by the learned Additional District Judge on the same day, i.e., 27th January, 1956. The order, so far as is material, is to the following effect:-
"x x x x x Let the compromise be recorded and four annas share of Nurul Haq in the auction sold property be released in terms thereof. The appeals are allowed ex parte against the rest, but without costs. With the modification of Nurul Haque's share, the sale is upheld and 'the lower Court's judgment is set aside."
8. Against the above order recording the compromise and setting aside the sale in part, only in respect of the four annas share of Nurul Haq, the original petitioner, Kafiluddin, one of the judgment-debtors, who did not apply for setting aside the sales, but was a party to the appeal of the auction-purchaser, in the Court of appeal below, moved this Court in revision. Mr. Justice R. K. Choudhary, who heard the civil revision applications, by an order of the 21st August, 1957, set aside the above order of the learned Additional District Judge and the matter was sent back for a fresh decision.
9. On remand, the learned Additional District Judge, by his order of the 11th December, 1957, set aside the order of the first Court, and, the sales, except to the extent of four annas share of Nurul Haq, with whom the auction-purchaser had earlier compromised, in respect of the remaining twelve annas share of the petitioner and another, were confirmed.
10. Kafiluddin, the original petitioner, then again moved this Court, against the said order of the Court of appeal below confirming the sale of twelve annas share of Kafiluddin and another in the lands sold.
11. Mr. Balbhadra Prasad Singh, appearing for the present petitioners, the heirs of the original petitioner Kafiluddin, contended that the sale in each case was one and indivisible, and, therefore, the, application also was made by Nurul Haq for setting, aside the entire sate, in each case, and, as such, the Court of appeal below had acted illegally in setting aside the sale of only the undivided four annas share of Nurul Haq, and, in confirming the sale of the remaining undivided twelve annas share of the other judgment-debtors, including the petitioners.
Mr. Singh, therefore, argued that on the order of the Court of appeal below itself, setting aside the sale of the undivided four annas share of Nurul Haq, against which this Court has not been moved, and which has, consequently, become final, the petitioners, although their ancestor, the deceased Kafiluddin, did not make any application for setting aside the sales, are entitled to challenge the said order confirming the sale of twelve annas share in all the auction-sold lands as illegal and without jurisdiction.
12. Mr. B. C. De, however, appearing for the auction-purchaser-opposite party 1, contended, in reply, that when the original petitioner, Kafiluddin, admittedly, did not make any application for setting aside the sale, in any case, he and, therefore, also the present petitioners, had no locus standi to challenge the sale or the order of the Court of appeal below, and, as such, these applications should be dismissed on this preliminary ground. He further argued that the Court of appeal below had the power to set aside the sale in part, if it thought fit.
13. As regards the locus standi of Kafiluddin, the original petitioner, to challenge the impugned order of the Court of appeal below, on the ground that he did not apply for setting aside the sale in any case, it is enough to mention that he moved this Court in revision on the previous occasion and got the order recording the compromise set aside and the matter remanded, and, at that time, no objection on the ground of his locus standi was raised in this Court by the auction-purchaser or the decree-holder, or, any body. In this view of the matter, I do not think it is open now to the auction-purchaser, who was a party to the previous cases also, to raise this question. He is, therefore, estopped by his conduct from questioning the locus standi of the original petitioner.
14. It is not necessary, therefore, in the present case, to decide the broad proposition of law, whether a sale can be set aside at the instance of a judgment-debtor without any application having been made by him under Order 21, Rule 90, Code of Civil Procedure, I would, therefore, overrule the preliminary objection.
15. In the present case, there is no dispute that, in each of the five execution cases, the entire land was sold as representing the land jointly owned by all the three judgment-debtors, without specifying the interest of each, or any, of them in it. Each area of land, in each of the five cases, was treated as one and undivided land held by all the three judgment-debtors jointly and in unspecified shares.
16. It is true that as the judgment-debtors were Mahommedans each of the judgment-debtors had specified interest therein and, on that ground, Nurul Haq, who applied for setting aside the sale, compromised with respect to his four annas share, but each of the five applications, which he made under Order 21, Rule 90, Code of Civil Procedure, was for setting aside the entire sale in each of the five cases, and not for setting aside the sales in respect of his separate and specified four annas share in all the lands sold. In these circumstances, the position now, on the order of the Court of appeal below, is that only a portion of the sale, on compromise, has been set aside.
17. The Question, therefore, is, could the Court do so?
18. In support of his contention, that a court cannot set aside a sale in part, if it is one and indivisible, Mr. Singh relied on two Bench decisions of this Court in Bachoo Prasad Singh v. Gobardhan Das, AIR 1940 Pat 62 and Chhaterbijai Singh v. Damodar Das, ILR 12 Pat 181 : (AIR 1933 Pat 223), and, also on a Full Bench decision of the Travancore High Court in Chacko Pyli v. Iype Varghese, (S) AIR 1956 Trav-Co 147.
19. In AIR 1940 Pat 62, the sale was of the entire property, which was a house. When the matter came before this Court, the sale was not till then confirmed. It was conceded by the learned counsel for the respondents that the order of the Subordinate Judge, setting aside the sale only as against the share of the minors in the house, which was joint, family property, should be read as an order setting aside the sale in its entirety. In these circumstances it was observed that the contention of the appellants that the sale, which purported to be a sale of the entire property, that is, a house, should either stand or be set aside as a whole, has substance.
20. In ILR 12 Pat 181 : (AIR 1933 Pat 223) it was held that where both the irregularity and the injury to the objector can be satisfactorily allotted to one part only of the sale, the Court may be justified in setting aside the sale of that part only, but in cases where the irregularity extends to the whole property and to all the lots, it is not justifiable to retain the efficacy of the sale with respect to some of the plots only in which the sale price obtained cannot be shown to be inadequate.
21. In (S) AIR 1956 Trav-Co 147 (FB), an extent of one acre and 25 Cents was sold in which only defendants 1 and 2, of that case, were interested. The sale was confirmed and, thereafter, two petitions, one by the third defendant and the other by one who claimed to be lessee from the first defendant, were filed for setting aside the sale. Both the applications were allowed. Before the Division Bench, where the appeal came up for hearing first before it was referred to a Full Bench, it was argued that when there was a sale of property in one lot and there is a circumstance vitiating a part while the sale in respect of the other is good, the part that is good would render the vitiating part also good, and, therefore, it was contended that the setting aside of the sale in its entirety is unjustified as the sale could be set aside piece-meal in respect of the portion which is vitiated.
22. Subramonia Iyer, J., who delivered the judgment of the Full Court, in the just mentioned case, said that the question whether a sale of property belonging to more persons than one having distinct, and separate interests, would in the event of its happening to be bad in part could be wholly void, the bad part vitiating the rest or it would be good all round, the good part rendering the remaining also good, does not admit of an answer on the simple affirmative or negative as it depends upon the circumstances. His Lordship, in setting aside the sale, at page 154, observed, with which observations I express my complete respectful agreement, that:
"The Court auction sale may be set aside in part if it is held in lots with separate particulars and proceeds. When a court sale is composite, i.e., of an entire property, comprising undivided- though distinct interests belonging to various persons and what is proclaimed for sale is the "entire property, as though it belonged to single owner without discriminating the separate interests with their particulars a piecemeal setting aside is not possible and the party entitled to relief though his interest may be fractional cannot be denied his rights on account of the accident of the existence of a simultaneous sale of another fractional part or parts regarding which the sale may be good".
"In such a case, in truth, the sale is not a separate sale of the fraction at all but it is a sale of an entire property which is not capable of being split up into parcels."
23. On the above question, whether a court sale, when it is composite, and, not in lots, of an entire property, can be set aside piecemeal, it would be useful to notice some decisions of the Calcutta High Court, which support the view taken by the Full Bench of the Travancore-Cochin High Court, above mentioned.
24. In Ramesh Chandra Patranabis v. Biraja Sundari Gupta, 32 Cal WN 519 : (AIR 1928 Cal 349), a Division Bench, presided over by Suhra-wardy and Graham, JJ., held that Rule 90 of Order 21 of the Code of Civil Procedure, speaks of setting aside a sale in its entirety; the rule does not contemplate the setting aside of a sale partially, and, therefore, thereunder, the entire sale could be set aside at the instance of one of the several judgment-debtors, if it is proved that the sale is bad on the ground of material irregularity or fraud, and a sale which is affected by such defects cannot be set aside in part, in that, an execution sale is either wholly good, or wholly bad; it cannot be good and bad at the same time; it cannot, as such, be set aside in part so as to make it partly good and partly bad; it must stand or fail as a whole; if it is set aside at the instance of some of the judgment-debtors or one of the judgment-debtors, that order will enure to the benefit of the other judgment-debtors, as otherwise the adoption of a contrary view would lead to complications.
25. In Amulya Krishna v. Dliip Kumar, 41 Cal WN 224, another Division Bench, presided over by Guha and Bartley, JJ., however, held that where after applications under Order 21, Rule 90, of the Code, by some of the judgment-debtors have been dismissed, a similar application by another judgment-debtor is allowed, the entire sale cannot be set aside; but it will stand confirmed as regards the share and interest of the judgment-debtors whose applications had previously failed. This is not, however, the position here.
26. In Shila Pal v. Comilla Banking Corporation Ltd., AIR 1945 Cal 434: 49 Cal WN 159, B.K. Mukherjea, J., as he then was, and with whom Sharpe, J., agreed, relying on the earlier Bench decision of that Court in 32 Cal WN 519 :(AIR 1928 Cal 349 (supra), held that Order 21, Rule 90, speaks of setting aside a sale in its entirety, if it is proved that it is bad on the ground of material irregularities or fraud; that a sale which is affected by such defects cannot be set aside in part, and it is immaterial that the person who applied to set it aside, is interested only in a fractional share of the property sold; but where properties are sold separately in separate lots, the sale of each lot is a separate sale, and in such cases, the sale may be upheld with regard to some of the lots and set aside as regards the rest.
27. The above mentioned case, AIR 1933 Pat 223 : ILR 12 Pat 181, (supra), was also referred but their Lordships did not agree with this decision in its entirety,
28. In Manmatha Nath Mukherjee v. Jiaul Haq, 55 Cal WN 196 : (AIR 1952 Cal 291) a learned single Judge of that Court, Guha, J., who was a party to the decision in Amulya Krishna Bandopadhya's case, 41 Cal WN 224 (supra), followed it as the facts were similar and held that generally a sale should be set aside or confirmed in its entirety, but this proposition is Subject to certain qualifications, as for instance, the bar of limitation, res judicata, etc.
29. In the aforesaid case, out of the six judgment-debtors, applications of three of them had failed, and two had made no such applications at all, and therefore, on the Rules obtained from the High Court by all the six judgment-debtors, it was held that the sale would stand confirmed as regards the shares of the three judgment-debtors whose previous applications had been unsuccessful; the sale would not foe set aside', in respect of the shares of the two judgment-debtors who had not up till then made a proper application under Order 21, Rule 90 for setting aside the sale, and, therefore, the sale was set aside only to the extent of the share of the sixth applicant who had applied under Order 21, Rule 90, for setting aside the sale. There the facts were entirely different.
30. I, respectfully, express my complete agreement with the principles of law laid-down by the Calcutta High Court in 32 Cal WN 519 : AIR 1928 Cal 349, which were reaffirmed in 49 Cal WN 159 : AIR 1945 Cal 434, and also in the Full Bench case of the Travancore-Cochin High Court.
31. On a consideration of the authorities discussed above the principles, which emerge therefrom and which would govern the present case, may be re-stated thus:-
Order 21, Rule 90, speaks of setting aside a sale in its entirety, if it is proved that it is bad on the ground of material irregularities or fraud.
Rule 90, Order 21, does not contemplate the set ting aside of a sale partially, and, therefore there under, the entire sale could be set aside, at the instance of one of the judgment-debtors, if it is proved that the sale is affected by such defects.
A sale, therefore, which is affected by such defects, cannot be set aside in part, and it is immaterial that the person who applies to set it aside, is interested, only in a fractional share of the property sold.
An execution sale is either wholly, good or wholly bad; it cannot be good and bad at the same time; it cannot, as such, be set aside in part so as to make it partly good and partly bad, it must stand or fail as a whole; if it is set aside at the instance of some of the judgment-debtors or one of them, that order will, enure to the benefit of the other judgment-debtors, although they have not also made an application for setting, aside the sale.
32. Accordingly, a Court auction sale may be set aside in part if it is held in lots with separate particulars and proceeds. When a Court sale however, is composite, i.e., of an entire property, comprising, undivided though distinct interests belonging to various persons and what is proclaimed for sale is the entire property as though it belonged to a single owner, without discriminating the separate interests with their particulars, and, the sale is one an indivisible, a piecemeal setting aside of the sale is not possible. In such a case, in truth the sale is not a separate sale of the fraction at all, but it is a sale of an entire property which is not capable of being split up into parcels.
33. In the light of the foregoing principles, let us see what the position, here, is.
34. Admittedly, the auction sale; in each case, was held of an entire property, comprising, no doubt, undivided though distinct interests of the three judgment-debtors, but without discriminating and defining their separate interests with their particulars as a composite sale, as one and indivisible.
The sale was proclaimed as if it belonged to a single owner, without specifying the undefined but distinct interest of each of the three judgment-debtors. In such a situation, therefore, the sale is not capable of being split up into parts; The application made by Nurul Haq, one of the judgment-debtors, was also for setting aside the entire sale in each case and not for setting aside the sale in respect of only his undivided four annas share in it.
The sale, as such, in each of the five cases, could be set aside in its entirety and not in part so as to make it partly good and partly bad.
35. The result, therefore, of the order, passed by the Court of appeal below, setting aside the sale with regard to only four annas interest therein of Nurul Haq, with the consent of, and, on compromise with, the auction purchaser, although not because it was vitiated due to any material irregularity or fraud, is, in the instant case, on the peculiar facts, here, that it should be read as an Order setting aside the sale in its entirety and as such it will enure to the benefit of the petitioners and the other judgment-debtor also, although both or either of them has not applied separately for setting aside the sale, the sale being a composite sale, one and indivisible, must be set aside in its entirety and not partially.
36. In these circumstances, the auction purchaser is estopped from contending that because the Court of appeal below has found, in disagreement with the first Court, that no material irregularity vitiating the sale had been established, the sate, at least, with regards to twelve annas interest must stand. The above finding of the Court of appeal below was in respect of the entire sale; notwithstanding this, however, the auction purchaser agreed to get the sale set aside partly, although the sale was not capable of being split up into parts. The auction purchaser, therefore, must suffer the consequence of his compromise with one of the judgment-debtors to get the sale set aside partially. The petitioners, therefore, are entitled to take advantage of this situation, although Kafiluddin, the original petitioner himself never applied for getting the sale set aside.
37. I would, therefore, allow these revisional applications and set aside the sale also of the remaining twelve annas share belonging to Kafiluddin, the ancestor of the petitioners, and the other judgment-debtor.
38. The result of this decision would be that it, would be open to the decree-holder to take such step as the law permits to take out fresh sale proclamation in each case.
39. Mr. Singh, however, on behalf of the petitioners agreed, as a compromise, that if the decree-holder does not like to take out fresh sale proclamations, it" would be open to him to withdraw a sum of Rs. 586/-, out of the Sum of Rs. 1000/-, which has been deposited by the petitioners in this Court, in full satisfaction of his claim in all the five execution cases, and, the auction purchaser will then also be entitled to withdraw the balance sum of Rs. 432/-, for which he purchased all these properties out of the said sum of Rs. 1000/-, by the end of January, 1961, and, thereafter, the petitioners will be entitled to withdraw the said sum of Rs. 1000/- deposited by them in this court.
40. In the result, all the applications are al lowed; the rule is made absolute, in each case, and the order of the Court of appeal below confirming the sale of the twelve annas share of the petitioners and another is set aside. There will, however, be no order for costs of this Court in any case.