Andhra Pradesh High Court - Amravati
N Vijaya Krishna vs Y R Reddy Died on 12 November, 2019
Author: M. Venkata Ramana
Bench: M. Venkata Ramana
HON'BLE SRI JUSTICE M. VENKATA RAMANA
C.R.P.NO.59 of 2019
ORDER:
This Civil Revision Petition is directed against the order of the Court of the learned Principal Senior Civil Judge, Nellore in E.A.No.168 of 2018 in E.P.No.31 of 2007 in O.S.No.61 of 2000 dated 12.12.2018.
2. The petitioner is the 3rd party.
3. The decree was passed in O.S.No.61 of 2000 in favour of the 1st respondent (since deceased) and against respondent No.3 and 4 for recovery of money. Basing on the decree dated 28.12.2003 in the above suit, the deceased 1st respondent levied execution petition, requesting for sale of the properties attached, said to be belonging to respondent Nos.3 and 4. After following due procedure, sale was directed and in fact sale was held on 26.07.2018. Thereafter, the execution petition was posted for confirmation of sale to 24.09.2018. The 5th respondent is the auction purchaser of the property so sold for Rs.33,56,155/-.
4. It now, transpires the sale in favour of 5th respondent has been confirmed by the executing Court on 03.01.2019.
5. The petitioner is claiming that he has purchased the E.P schedule property on 27.12.2004, from one Sri A. Venkatanagendra Rao and four others for valuable consideration. On an earlier occasion, he filed a claim petition under Order XXI Rule 58 CPC in E.A.No.448 of 2008 on the file of the executing Court. It was dismissed on 20-08-2010 after hearing the parties, on merits. A.S.No.146 of 2010 preferred by him on the file of the Court of the learned V Additional District Judge, Nellore MVR, J C.R.P.NO.59 of 2019 2 was also dismissed, stated to be on merits on 01.05.2014 confirming the order of the executing Court, rejecting the petition or claim raised by the petitioner.
6. The above are not disputed facts in this case.
7. However, the petitioner chose to file E.A.No.168 of 2018 under Order XXI Rule 89 read with 151 CPC to set aside the sale subject to depositing E.P amount along with 5% equal to purchase amount. The respondent No.1 died and his wife who is the 2nd respondent was brought on record in the execution petition itself. She as well as the auction purchaser namely 5th respondent resisted the petition, raising almost similar contentions questioning very status of the petitioner and as to maintainability of petition under Order XXI Rule 89 CPC, since he being not judgment debtor. Another ground urged by both of them in the executing Court was, that the petitioner did not come forward to deposit the required amount within 60 days from the date of sale and mere presentation of a petition, in an attempt to deposit such amount after expiry of 60 days, was not proper.
8. Respondent Nos. 3 and 4 raised objections questioning attachment of the property as well as manner of sale mainly on the ground that the property worth Rs.90,00,000/- was sold for less amount, in an attempt to make out irregularity in conduct of sale.
9. Upon hearing the parties, the executing Court dismissed the petition, mainly on the ground that mere presentation of the petition along with lodgment schedule is not sufficient, which attempt was made on the 60th day from the date of the sale without actually depositing the required amount. Thus, it was observed MVR, J C.R.P.NO.59 of 2019 3 that it was not open for the petitioner to invoke under Order XXI Rule 89 CPC and request to set aside the sale.
10. Assailing the order of the executing Court, the petitioner has presented this Civil Revision Petition.
11. On behalf of the petitioner Sri T. Sridhar, learned counsel for the petitioner, and on behalf of 5th respondent Miss Y.L. Siva Kalpana Reddy, learned counsel, and on behalf of 2nd respondent Sri Ch. Venkat Raman, learned counsel, addressed arguments, justifying their respective stands.
12. Now, the point for determination is - whether the sale of E.P schedule property as requested by the petitioner be set aside on the ground raised in terms of Order XXI Rule 89 CPC?
13. Order XXI Rule 89 CPC reads as under:
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 deposition 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.
14. In terms thereof either judgment debtor, can file an application to set aside sale or by any person claiming interest in the property so sold.
15. Though the objection was raised by the respondent Nos.2 and 5 questioning the status of the petitioner, the executing Court, MVR, J C.R.P.NO.59 of 2019 4 observed in the impugned order that the petitioner, by virtue of purchase of the property as claimed by him is a person interested therein and therefore he can well maintain such petition. These, observations of the executing Court have not been questioned by the respondent Nos.2 and 5.
16. It is also desirable to consider the effect of Order XX1 Rule 92 (1) and (2) CPC in this context. They are :
92 . Sale when to become absolute or be set aside--
(1) When 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 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.
17. It is not in dispute in this case that the petition under Order XX1 Rule 89 CPC was filed by the petitioner in executing Court on 24.09.2018. A lodgment schedule was also presented, obviously for issuing challan to deposit the sale warrant amount along with expenses relating to the sale as well as 5% of the sale amount. Actual deposit of such amount was not made on that day.
18. Sri T. Sreedhar, learned counsel for the petitioner, has contended that presentation of such application was within 60 days, in terms of Article 127 of Limitation Act and what shall follow in respect of actual deposit need not be taken into consideration.
MVR, J C.R.P.NO.59 of 2019 5 In support of his contention, reliance is placed in one of the Judgments of Madras High Court in V. Balasubramanian vs. S. Veerapathiram dated 11-08-2018 in C.R.P.No.1732 of 2018. In the given facts and circumstances, when an application was filed under Order XX1 Rule 89 CPC in the executing Court, expressing ready and willingness to deposit the required amount, when lodgment schedule was also presented within 60 days, it was observed that it was proper presentation. The fact that necessary endorsement on the lodgment schedule when not made by the executing Court, a direction was given to make such an endorsement to enable the party to deposit the amount necessary in terms of Order XX1 Rule 89 CPC.
19. In another ruling relied for the petitioner is in J. Ramalakshmi Vs M.V.R.K. Mutyalu1, wherein with reference to application of Order XX1 Rule 85 CPC and when required steps were not taken in terms thereof.
20. Thus, it is an attempt of the petitioner to point out that there was lapse on part of executing Court in the process, on account of which he could not deposit the required amount within 60 days, though he was always ready to deposit the same.
21. On behalf of 5th respondent, reliance is placed in Annapurna Vs. Mallikarju and another2. In this ruling, their Lordship of Hon'ble Supreme Court took into consideration the effect of Order XX1 Rule 89, 92 and Article 127 of Limitation Act, and observed in para-6 thus :
"A careful perusal of the provisions in Rules 89 and 92 of Order 21 CPC and Article 127 of Limitation Act leave no manner of doubt that although Order 21 Rule 89 CPC does not 1 (2004) 5 ALD 284 2 (2014) 6 SCC 397 MVR, J C.R.P.NO.59 of 2019 6 prescribe any period either for making the application or the required deposit, Article 127 of Limitation Act now prescribes 60 days as the period within which such an application should be made. In absence of any separate period prescribed for making the deposit, as per the judgment of the Constitution Bench in Jammulu Ramulu3 the time to make the deposit and that for making the application would be the same."
22. Observations of Constitution Bench in Dadi Jagannadham Vs. Jammulu Ramulu4 with reference to Order XX1 Rule 89 CPC and Article 127 of Limitation Act, are relied on in Ram Karan Gupta Vs. J.S. Exim Limited and Others5, in given facts and circumstances, in para 22, it was observed as :
"Clause (a) of Sub- rule (1) of Rule 89 of Order 21 requires the applicant to deposit in Court 5 per cent of the purchase money for payment to the auction purchaser. Deposit of the requisite amount in the Court is a condition precedent or a sine qua non to an application for setting aside the execution of sale and such a amount must be paid within a period specified in the rule and if the deposit is made after the time limit, the application must be dismissed. The deposit made under Rule 89 of Order 21 CPC should be unconditional and unqualified and the decree holder or the auction purchaser should be able to get the amount at once".
23. It is also desirable to note the observations of the Constitution Bench referred to above as extracted in this ruling in this context in para-19 which are as under:
"A Constitution Bench of this Court in Jammulu Ramulu (supra) had occasion to consider the scope of Order 21 Rule 92(2) and Rule 89 CPC. Overruling P. K. Unni (supra), this Court held as follows:
"15. A plain reading of Order 21 Rule 92 CPC shows that the court could either dismiss an application or allow an application. Order 21 Rule 89 CPC prescribes no period either for making the application or for making the deposit. The Limitation Act also prescribes no period for making a deposit. However, Article 127 of the Limitation Act prescribes a period within which an application to set aside a sale should be made. Earlier, this was 30 days, now it has been enhanced to 60 days. Unless there was a period prescribed for making a 3 (2001) 7 SCC 71 4 (2001) 7 SCC 71 5 (2012) 13 SCC 568 MVR, J C.R.P.NO.59 of 2019 7 deposit, the time to make the deposit would be the same as that for making the application. This is so because if an application is made beyond the period of limitation, then a deposit made at that time or after that period would be of no use.
24. Having regard to legal proposition, so explained by the Hon'ble Supreme Court, it is necessary that deposit of amount in terms of Order XX1 Rule 89 CPC, shall be made within 60 days under Article 127 of Limitation Act. Mere presentation of petition along with lodgment schedule within 60 days or on 60th day, cannot amount to compliance of requirement in terms of Order XX1 Rule 89 CPC. When the attempt of the petitioner in the executing Court was only to present a petition of such nature without actual depositing the required amount, in view of law enunciated by the Hon'ble Supreme Court, referred supra, it cannot amount to proper presentation of petition under Order XX1 Rule 89 CPC, nor on such score, the petitioner can request the Court to set aside the sale.
25. Thus, the contention on behalf of the 5th respondent has to be accepted in this context, rejecting the version of the petitioner.
26. A vain attempt is also made on behalf of the petitioner, questioning the manner of conduction of sale as well as nature and bid offered by the respondent No.5. Reliance placed in this respect on behalf of the petitioner in Balakrishnan Vs. Malaiyandi Konar6 and Malempati Harinarayana Vs. Vankayalapati Subba Rao and others7.
27. Apparently, no such ground was taken in the executing Court by the petitioner nor is it open for him to raise such 6 (2006) 3 SCC 49 7 (2013) 3 ALD 525 MVR, J C.R.P.NO.59 of 2019 8 question, since it is only judgment debtor who can raise such questions in permissible circumstances.
28. The executing Court took into consideration, all of the circumstances and rightly applied the ruling of the Hon'ble Supreme Court in Ram Karan Gupta Vs. J.S. Exim Limited and others8 referred to above and rejected the petition.
29. In the circumstances of the case, finding no irregularity or illegality in the order of the executing Court, this Civil Revision Petition has to dismissed, confirming the same.
30. In the result, the Civil Revision Petition is dismissed. Consequently, order of the executing Court in E.A.No.168 of 2018 in E.P.No.31 of 2007 in O.S.No.61 of 2000 dated 12.12.2018 is confirmed. As per the orders of this Court dated 01.02.2019, the petitioner was directed to deposit Rs.5,00,000/- to the credit of the E.P in the executing Court. The petitioner is entitled for refund of the above amount, if at all, such deposit is made and the executing Court is directed to order such refund on an appropriate application by the petitioner. There shall be no order as to costs.
As a sequel, interim stay granted earlier shall stands vacated and pending miscellaneous petitions, if any, shall stand closed.
__________________________ M. VENKATA RAMANA, J Date: 12.11.2019 Jks.
8 (2012) 13 SCC 568 MVR, J C.R.P.NO.59 of 2019 9 HON'BLE SRI JUSTICE M. VENKATA RAMANA C.R.P.No.59 of 2019 DATE:12th day of November 2019 JKS