Uttarakhand High Court
Balwinder Singh vs Smt Vidya Chabda And Others on 4 August, 2015
Author: Alok Singh
Bench: Alok Singh
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 819 of 2015 (M/S)
Balwinder Singh .....Petitioner
Versus
Smt. Vidya Chabra and others ....Respondent
With
Writ Petition No. 820 of 2015 (M/S)
Balwinder Singh .....Petitioner
Versus
Smt. Vidya Chabra and others ....Respondent
With
Writ Petition No. 821 of 2015 (M/S)
Balwinder Singh .....Petitioner
Versus
Smt. Vidya Chabra and others ....Respondent
Mr. Arvind Vashsistha, Senior Advocate assisted by Mr. Ashish Sinha, Advocate for the
petitioner.
Mr. Lok Pal, Singh, Advocate for respondent Nos. 1 to 4.
Hon'ble Alok Singh, J. (Oral)
All these three petitions are inter-connected involving identical questions of fact and law, therefore, with the consent of learned counsel for the parties, are heard together and are being disposed of by this common judgment.
Brief facts of the present case, inter alia, are that Sri Balraj Chabra, husband of respondent No. 1, herein, and father of respondent Nos. 2, 3 and 4, herein, has filed Suit No. 132 of 1964 for recovery of Rs.35,500/- against Sri Amar Nath, respondent No.5, herein, Suresh Chandra, father of respondent No. 6, herein and Smt. Kalawati, mother of respondent No. 5 and grand mother of respondent No. 6, herein, saying Kashi Ram, late father of defendants Nos. 1 and 2 and late husband of defendant no. 3 had created simple mortgage vide 2 registered deed dated 15.11.1952 in favour of Balraj Chabra, plaintiff at the time of taking loan. In the Suit No. 132 of 1964, defendants therein, have taken defence that in fact Munni Lal (third party) was the real owner of the property, in question, and Kashi Ram was benamidar of Muni Lal, therefore, had absolutely no jurisdiction and authority to create mortgage in favour of Sri Balraj Chabra/ plaintiff therein; it was further pleaded that suit was bad for non joinder of Munni Lal, the real owner of the mortgaged property; in the suit, preliminary decree was passed vide judgment dated 03.09.1965, decreeing the recovery of Rs.35,500/- alongwith cost and future interest @ 4% p.a. on the principal amount with the stipulation that defendants would pay decreetal amount within six months and preliminary decree may be drawn up in accordance with law; learned Trial Court was pleased to over rule plea of the defendants that Kashi Ram was not the owner rather Muni Lal was the owner; preliminary decree dated 03.09.1965 was challenged by the defendants [respondent No. 5, herein, and father of respondent No. 6, herein, as well as by mother of respondent No. 5 and grand mother of respondent No.6, herein]; however, First Appeal was dismissed confirming the preliminary decree dated 03.09.1965; since, defendants / judgment debtors have failed to pay the decreetal amount within six months, therefore, plaintiff/decree holder, has approached lower court to draw up the final decree for recovery of amount by selling the mortgaged property, in question; during the pendency of the proceedings to draw up the final decree, property in question, was attached under Order 21 Rule 54 C.P.C. whereupon 3 Smt. Krishna Devi, wife of Muni Lal had filed her objections under Order 21 Rule 58 C.P.C. saying her husband Muni Lal was the real owner of the property and Kashi Ram, who had allegedly mortgaged the property, was only benamidar, therefore, Kashi Ram was not the real owner, therefore, property belonging to Muni Lal or thereafter his widow Smt. Krishna Dei could not be attached and sold; objections so filed under order 21 Rule 58 C.P.C. by Smt. Krishna Devi were dismissed vide judgment dated 06.04.1973; meanwhile, learned Collector without informing the Civil Court hearing the proceedings to draw up final decree, has proceeded to auction the property in question for recovery of State dues outstanding against Muni Lal, wherein, Preetam Singh, father of the petitioner No.1 and respondent Nos. 7 and 8, herein, was declared highest bidder and sale certificate was issued in his favour on 12.07.1973; without acquiring knowledge about the alleged sale by the Collector in different proceedings, proceedings pending for drawing up for final decree proceeded and final decree was passed on 04.12.1975; mortgaged and attached property was directed to be sold in the execution proceedings; ultimately Balraj Chabra/ plaintiff/decree holder was permitted to participate in the auction and in a public auction held on 23.08.1976, he was declared highest bidder and sale certificate was issued in his favour; having obtained sale certificate in his favour, Sri Balraj Chabra/ plaintiff/ decree holder has moved application under Order 21 Rule 97 C.P.C. to provide the police help to him in getting possession over the property purchased by him in the auction sale;
4in the proceedings under Order 21 Rule 97 C.P.C., petitioner and respondent Nos. 7 and 8, herein, have preferred their objections; vide order/judgment dated 09.09.1983, objections preferred by petitioner and respondent Nos. 7 and 8 were dismissed and application moved by the decree holder under Order 21, Rule 97 C.P.C. was allowed; appeal No. 350 of 2003, challenging the order / judgment dated 09.09.1983, filed under Order 21 Rule 102 C.P.C., was dismissed by this court, vide judgment dated 06.08.2007; thereafter, petitioner and respondent Nos. 7 and 8 have preferred three fresh objections under Order 21 Rule 89 C.P.C, under Section 47 C.P.C. as well as under Rule 5 Order 34 C.P.C. All these objections preferred by the petitioner and respondent Nos. 7 and 8 were dismissed by the Executing Court and revision arising therefrom were also dismissed; feeling aggrieved, petitioner has approached this Court by way of present three petitions.
I have heard Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Ashish Sinha, Advocate for the petitioner and Mr. Lok Pal Singh, learned counsel, appearing for respondent Nos. 1 to 4 / legal heirs of the plaintiff / decree holder and have carefully perused the record.
There is no dispute that in Suit No. 130 of 1964, Shri Kashi Ram was held to be true owner and was held to have mortgaged the property in question in favour of the plaintiff, namely, Sri Balraj Chabra. It is also not in dispute that vide judgment and decree dated 03.09.1965, passed in O.S. No. 132 of 1964, a preliminary decree was passed as per provision of Order 5 34 Rule 4 C.P.C. and preliminary decree was upheld by the First Appellate Court.
It is also not in dispute that decreetal amount as directed by the Trial Court, vide judgment and decree dated 03.09.1965, was not paid by the defendant within six months, therefore, plaintiff had initiated proceedings for drawing up of the final decree wherein property was directed to be attached under Order 21 Rule 54 C.P.C.
It is also not in dispute that Smt. Krishna Devi, wife of Muni Lal, had moved objection under Order 21 Rule 58 C.P.C. challenging the attachment of the property, in question, saying Muni Lal was the real owner of the property and after his death Smt. Krishna Devi was the owner and Kashi Ram was not the owner of the property, therefore, for the recovery of decreetal amount against LRs of Shri Kashi Ram, property, in question, could not be attached.
It is also not in dispute that objection so filed under Order 21 Rule 58 C.P.C. was dismissed by the Court, vide judgment dated 06.04.1973, holding that Muni Lal was not the owner and Sri Kashi Ram was the owner, therefore, property was rightly attached under Order 21 Rule 54 C.P.C.
Since, Muni Lal was not held to be owner of the property vide judgment dated 06.04.1973, therefore, auction made by the Collector of the property in dispute for the recovery of certain dues outstanding against Muni Lal on 12.07.1973, on the face of it, was illegal and without jurisdiction. Moreover, since, property, in question, was attached under Order 21 Rule 54 C.P.C. on 12.07.1973, therefore, learned Collector was not 6 competent to auction/ sale the attached property by treating it property of Shri Muni Lal or his widow, thereafter on 12.07.1973.
In my humble opinion, Sale Officer transfers the title of the auctioned property on behalf of the owner of the property auctioned in favour of the auction purchaser. Since, Muni Lal or his widow were not the owner of the property auctioned on 12.07.1973, therefore, applying the principle that none can transfer better title than he himself had no title stood transferred in favour of Shri Pritam Singh, father of the petitioner.
Since Preetam Lal, father of the petitioner has not acquired any valid title, therefore, petitioner has absolutely no title or right to remain in possession of the property in question. Consequently, he has absolutely no locus to resist the execution.
Order 21 Rule 89 C.P.C. reads as under :-
"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 depositing 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 7 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."
Bare perusal of Rule 89 of Order 21 C.P.C. would demonstrate that such person, who has any interest in the property sold in auction, may apply for setting aside the sale on depositing sum equal to 5% of the purchase money and amount specified in the proclamation of sale.
Since, father of the petitioner had acquired no title or interest in the property sold, therefore, petitioner also does not have any legal right to invoke Order 21 Rule 89 C.P.C. as well.
In the result, all the writ petitions fail and are hereby dismissed.
(Alok Singh, J.) Dated 4th August, 2015 Shiv