Orissa High Court
Kamala Kanta Mohapatra And Anr. vs Debarchan Seth And Anr. on 18 March, 1991
Equivalent citations: AIR1992ORI52, AIR 1992 ORISSA 52
Author: A. Pasayat
Bench: A. Pasayat
ORDER A. Pasayat, J.
1. In this revision application challenge is to the order of rejection of a petition under Order 21, Rule 90, Code of Civil Procedure, 1908 (in short 'Code'), filed by the judgment-debtors, in an execution proceeding. Scope and ambit of several provisions of Order 21, CPC are involved in this petition.
2. Factual position delineated in outline is as follows.
A money decree was obtained by the opposite party No. 1 (described hereafter as 'the decree-holder') against the petitioners (described hereafter as 'the judgment-debtors') and the decree was put to execution by the former against the present petitioners, and opposite party No. 2 for realisation of a sum of Rs. 1886.17. The execution case was numbered as Execution Case No. 57 of 1977, and Ac.6.80 decimals of land was put to auction on 17-8-1985, and sold for Rs. 6,700/-. The judgment-debtors filed a petition under Order 21, Rule 90, CPC to set aside the auction sale on the grounds of irregularities in publishing and conducting the sale, inter alia, on the premises that no notice of attachment was served on the petitioners; due proclamation was not there; the proclamation did not bear correct names of the judgment-debtors; the sale proclamation was not properly served and the property which was valued at about Rs. 1 lakh was purchased for a meagre sum of Rs. 6,700/- by the decree-holder himself for realisation of Rs. 1886.17. The application which was numbered as Misc. Case No. 55 of 1985 was dismissed by the learned Munsif, Bargarh. The dismissal was affirmed in an appeal filed by the judgment-debtors-petitioners which was numbered as Misc. Appeal No. 7 of 1986 by the learned Subordinate Judge, Bargarh.
3. The grounds indicated for setting aside of sale were reiterated at the time of hearing of the revision application. According to the learned counsel for the opposite parties, however, there was no infirmity in the conduct of sale; the petition under Order 21, Rule 90, CPC was not maintainable because the deposit mandated by the Orissa Amendment to Order 21, Rule 90 was not made within the stipulated time; there was no infirmity in the attachment or proclamation and merely because valuation of the property may be high that cannot be a ground for attaching any invalidity to the sale. On consideration of the rival submissions, the following points emerge for consideration.
(i) Whether the deposit contemplated by the Orissa Amendment to Order 21, Rule 90 is to be made along with the petition or can be made at any time before the petition is taken up for disposal?
(ii) Whether purchase by the decree-holder without the consent of the Court renders the sale invalid?
(iii) Whether a separate petition is necessary to set aside the sale on the ground of aforesaid infirmity or the point can be raised in a petition under Order 21, Rule 90?
(iv) Whether the Court is required to apply its mind to the question whether a part of the property if sold would satisfy the decree, and whether non-consideration of this aspect vitiates the sale?
4. So far as the first point is concerned it would be relevant to quote the Orissa Amendment to Order 21, Rule 90, which mandates a deposit of 121/2% of the auction amount as a condition precedent to admission of the objection. The amendment so far as it is relevant reads as follows :
"Orissa High Court Amendment
(a) Substitute the following for the proviso to Sub-rule (1) --
(i) Provided that no application to set aside a sale shall be admitted,
(a) upon any ground which could have been, but was not put forward by the applicant before the sale was concluded, and
(b) unless the applicant deposits such amount not exceeding twelve and half per cent of the sum realised by the sale or such other security as the Court may in its discretion fix, unless the Court, for reasons to be recorded, dispenses with the deposit.
(ii) Provided further that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.
xx xx xx."
The Orissa Amendment substituted proviso to Sub-rule (1) and as it existed prior to insertion of the Sub-rule (1) and it stands now by the amendment to the Code in 1976. Some amount of dispute arose that the Orissa High Court Amendment does not subsist and has been wiped out after the provisions which existed at the time of amendment were replaced by the amendment of the Code. I do not express any final opinion in the matter, as in my view the said aspect need not be considered in the present case. The Orissa High Court Amendment, as contained in Clause (b) of the proviso to Sub-rule (1) imperates deposit, and the proviso itself indicates that an application shall not be admitted unless the deposit is made. There is, therefore, sufficient expression of legislative intent that the application shall not be admitted for consideration and disposal unless the deposit is made. It is also provided that the Court in its discretion may dispense with the deposit or direct security to be furnished. The deposit is mandated to be made before the petition is admitted for consideration. It is not necessary that the deposit is to be made along with the petition or within time prescribed for its filing. My view gains support from a decision of this Court reported in AIR 1967 Orissa 84; Sulekha Khatun v. United Bank of India Ltd., Choudhury Bazar, Cuttack. In the instant case it appears that before the petition was taken up for consideration the deposit as prescribed was made. Therefore, there was nothing illicit in the Executing Court considering the petition under Order 21, Rule 90.
5. So far as the second point is concerned the same is taken up along with the third point because they are interlinked.
The absence of Court's permission to the decree-holder to bid for the property renders the same invalid. A purchase of property by the decree-holder without permission of the Court under Order 21, Rule 90, CPC would not be absolutely void, but merely voidable and is liable to be set aside if an application for the purpose is filed under Sub-rule (3). This is the view expressed in (1922) ILR 1 Pat 733 : (AIR 1922 PC 336), Bai Radha Krishna v. Bisheshar Sahay and AIR 1949 Nagpur 414, Vithoo Punjaji v. Thakurdas Kunjilal. However, it is relevant to mention here that the word "shall", and not "may" clearly indicates that obtaining of the permission of the Court is mandatory before a decree-holder can bid at the auction and purchase the property, and if the decree-holder without obtaining such permission or in spite of refusal of such permission bids at the auction, certainly he contravenes a mandatory provision of law. The use of the word "express" before "permission" indicates the stringency of the provision. But, an application to set aside a sale under Order 21, Rule 72(3) is an independent application and is conceptually different from the application contemplated under Order 21, Rule 90. The two provisions provide for two different applications and in the absence of any statutory compulsion, it would not be justified to equate the two, and import into one set of provisions, the restrictions or limitations imposed in the other. While Order 21, Rule 90 posits sustenance of substantial injury, and imperates proof thereof as a condition precedent to set aside the sale, no such mandate applies in respect of an application under Order 21, Rule 72(3). The considerations applicable are different in respect of the two. A Full Bench of the Madras High Court in AIR 1981 Madras 1; K. Suresh Babu v. K. Balasubramaniam, has also expressed a similar view.
6. In the instant case, the judgment-debtors do not appear to have made an application under Order 21, Rule 72 (3) and even if the submission of the learned counsel for the petitioners that in an appropriate case such prayer can be inferred from Order 21, Rule 90 application is accepted, in the instant case I find no whisper about this aspect in the application. The question of the Courts below considering this aspect, therefore, did not arise.
It is relevant to mention here that the provision contained in the Orissa Amendment so far as it relates to Order 21, Rule 72 (1) appears to be inconsistent with the provision contained in the Code itself. There is an apparent purpose behind the present enactment so far as Order 21, Rule 72 (1) is concerned. The object is to rule out the possibility of undervaluation, and grabbing of property of disadvantaged judgment-debtors by the decree-holder at a throw away price. By operation of Section 97 of the Civil Procedure Code (Amendment) Act, 1976, amendments by the High Court or by legislation, so far as they are inconsistent with the amended Code, stood repealed irrespective of the fact whether corresponding provision of the Code had been amended or modified or not. Thus, the provisions of Order 21, Rule 72(1) as substituted by Orissa High Court Amendment prior to amendment of the Code appear to be no longer applicable in view of the present provision. In this context, the decision of the Supreme Court in AIR 1986 SC 589 : (1986 All LJ 271), Ganpat Giri v. IInd Additional District Judge, Balia, is relevant, as well as deletion in 1984 of the Orissa Amendment to the rule.
7. The residual question is whether the Court was required to satisfy itself if portion of the property would be sufficient for satisfaction of the decree, and the effect of non-consideration of this aspect. The question is no longer res integra after the binding authority of the apex Court in AIR 1990 SC 119, Ambati Narasayya v. M. Subba Rao. It was observed that a duty is cast upon the Court under Order 21, Rule 64 to see whether a portion of the property to be put to sale is sufficient to satisfy the decree and it is the legislative mandate, ignorance of which affects the legality of the sale. This aspect having not been considered, the sale was vitiated.
8. In view of what has been stated above, the sale was interdicted and is set aside. The matter goes back to the Executing Court to the stage of safe and the Executing Court shall proceed from that stage in accordance with law.
The Civil Revision is accordingly disposed of.