Gujarat High Court
Ramanlal Premchand Shah vs Indumati Bhagwandas on 8 February, 1989
Equivalent citations: AIR1990GUJ1, (1989)1GLR686, AIR 1990 GUJARAT 1
ORDER
1. At the request and with the consent of the parties, both these revision applications are ordered to be heard together and are being disposed of by a common judgment and order.
2. Both these revision applications arise out of an order passed by the executing Court in Special Execution Applications No. 10 of 1980 and 50 of 1980. It appears that the judgment creditor(s) in furtherance of the execution of the decree obtained by them got the sale proclamation issued, in respect of the land belonging to the judgment-debtor but the auction sale was adjourned. Since it was adjourned for a period of more than 30 days it was contended that in view of the provisions of Order XXI, Rule 69 of the Civil Procedure Code fresh sale proclamations should be issued. It was inter alia contended that the price of the land sought to be sold in execution at present would be about Rs. 80.00 lacs while the estimated price shown in the sale proclamations earlier issued was around Rs. 20.00 lacs. From the record of the Revision applications it is not clear as to how such are the decretal dues, but it appears that the price of the land as stated by the judgment debtors, if realised, would be in far excess of the decretal dues.
3. There is no dispute with regard to the, fact that the auction sale was adjourned for a period of more than thirty days and therefore the provisions of Order XXI, Rule 69 are attracted. However, it is clear that the objection raised by the judgment-debtor, has been rejected by the learned trial Court Judge on the ground that the objection as regards noncompliance of the provisions of Order XXI, Rule 69 is new one and that the sale was never adjourned by the Court of its own but it was adjourned at the instance of the judgment debtor and hence the sale could not be proceeded further. Moreover, there is no alteration in the sale proclamation and, therefore, the trial Court hold that fresh sale proclamations were not necessary. The trial Court further observed that the sale was staged for more than one year and at the most what was necessary was to make announcement of sale by beat of drum as provided in Rule 54 of Order XXI of C. P. Code and it was not necessary to draw fresh proclamations. The trial Court rejected the objections submitted by the judgment-debtors on the aforesaid grounds.
4. Order XXI, Rule 69 provides for adjournment or stoppage of sale. Sub-clause (1) of the Rule provides that the Court may, in its discretion, adjourn auction sale to any other date and hour. The officer conducting any such sale is also empowered to adjourn the sale but he has to record the reasons for such adjournment. It is also provided that when the sale is made in, or within the precincts of the Court-house, the sale should not be adjourned without the leave of the Court. Sub-clause(2) of Rule 69 of Order ANSI, Rule 69 which is material for our purpose reads as follows:
(2) there a sale is adjourned under sub-rule (1) for a longer period than thirty days, a fresh proclamation under Rule 67 shall be made, unless the judgment-debtor consents to waive it.
A bare reading of the aforesaid provision makes it clear that fresh proclamation would be necessary whenever the sale is adjourned for a period longer than thirty days. Only exception is the waiver by judgment-debtor. The provision of the Rule is general. It does not provide that if the adjournment is at the instance of the judgment-debtor fresh proclamations under R. 67 shall not be necessary. In fact it is too general and capable of being construed to make it irrelevant as to who applies for adjournment. Adjournment of sale might have been sought at the instance of the judgment creditor, or it may be at the instance of the judgment-debtor, or even at the instance of a third party. Once there is adjournment of sale for a period longer than thirty days without the consent of the judgment-debtor, fresh proclamation under R. 67 has to be made. The legislative intent has been made clear by employing following phraseology:
"fresh proclamation under R. 67 shall be made."
The only exception provided is in case where the judgment debtor agrees to waive the requirement of fresh proclamation. In the instant case there is nothing to show that the judgment-debtor has consented to waive the requirement of fresh proclamation. Therefore the order passed by the trial Court rejecting the objections and declining to issue fresh proclamation as prayed for by the judgment debtor cannot be sustained.
5. It is true that sometimes unscrupulous people may file an application for adjournment on flimsy and untenable ground and see, that the sale is adjourned beyond the period of thirty days. However, in such cases the Court' is not powerless. In cases where the judgment debtor himself applies for adjournment and if the Court finds that such application for adjournment is made with a view to delaying the execution proceedings, and it is not based on genuine and honest grounds, the trial Court can Insist upon the judgment-debtor that he may waive the requirement of fresh proclamation under O. XXI, R. 67 of C. P. Code. In case the judgment-debtor refuses to waive the requirement of fresh proclamation and insists for adjournment of' sale on some tenable ground, the executing Court may adjourn the auction sale. But while adjourning the auction sale the trial Court would be justified in imposing terms upon the judgment-debtor.
6. It is also true that it is not specifically provided that the trial Court Can adjourn the auction sale by imposing terms. But even in cases of adjournment in proceedings of civil suits the provision regarding adjournment contained in Order ASCII of Civil Procedure Code does not expressly provide for imposing terms while granting adjournment. Even so, the Court does exercise this power of imposing terms, and in suitable cases grants adjournment on compliance with certain terms only. If this power is not read in these provisions, by necessary implication, regulation and control of proceedings would become impossible and the Court would be at the mercy of litigants and some times at the mercy of unscrupulous people. In this connection reference may be made to a decision of Madras High Court in the case of Subbarama Ayyar v. Chinnaswami Thanjirayar, reported in AIR 1935 Mad 295. Therein it is inter area held that the Court has power under O.XXI, Rule 69 to impose terms for adjournment of sale even though the rule does not specifically say so. Thus, while granting adjournment as prayed for by the judgment debtor himself, in fit cases the Court may insist that the adjournment may be granted only after the requirement of fresh proclamation is waived by the judgment debtor. As stated herein above, if the judgment debtor does not consent and if the Court finds that there is sufficient cause for adjournment of sale, the Court may grant adjournment even at the instance of the judgment debtor on condition that he may deposit the cost of the fresh proclamation, in Court. It is difficult to enumerate the nature and types of terms and conditions which may be imposed while adjourning the auction sale. However, having regard to the facts and circumstances of each case the Court can, and in certain cases should, impose suitable terms while adjourning the auction sale so that unscrupulous people may not abuse the process of Court.
7. It may be that instead of judgment debtor some-one else may apply for adjournment of sale. In such cases also provisions of O. XXI, R. 69 is attracted. Ordinarily it would be a party to the proceedings who would be within his right to apply for adjournment. There is nothing in O. XXI, R. 69 which specifically empowers any one who is not a party to the proceedings to make application for, adjournment. But at the same time there is nothing in the rule which forbids the Court to grant adjournment on an application submitted by a third party. The question of adjournment of sale is left in the discretion of the Court. Even when a third party applies for adjournment of sale, and when the Court finds that there is sufficient cause for adjourning the sale, adjournment may be granted in proper cases by imposing suitable terms. It may be realised that one of the objects of the requirement of publication of proclamation is to give the judgment debtor and others opportunity to raise objections, if any, as to the sale. But another object, probably more important, is also to enable the judgment debtors to provide suitable purchasers for the property in auction. If sale is held without due publication and surreptitiously, the very object of the procedure provided for publication of auction sale would be defeated. In this connection reference may be made to a decision of the High Court of Andhra Pradesh in the case of Kummathi Narayanappa v. Talari Akkulappa reported in AIR 1965 Andh Pra 215, wherein a similar view is taken.
8. In the instant case it is true that on earlier occasions relatives, and probably the sons, of the judgment-debtors had raised objections and had got the sale postponed. But that cannot be helped. All that can be said is that if the executing Court finds that the adjournment is sought on untenable and flimsy grounds and solely with a view to delay the execution proceedings suitable terms can be imposed and in a fit case the judgment debtor can also be asked to waive the condition as regards fresh Proclamation under R. 67 of O. XXI of C.P Code.
9. On facts of the case there is no dispute that the sale has been adjourned for a period of more than thirty days. Hence the provisions of O. XXI, R. 69(2) are attracted. Therefore, the view taken by the trial Court cannot be sustained.
10. In above view of the matter the carriers passed by the trial Court in both the execution applications, below Exh. 84 in Civil Revision Application No. 1309 of 1988 and below Exh. 126 in Civil Revision Application No. 1310 of 1988 are quashed and set aside. The trial Court is directed to proceed further with the execution of decree and issue fresh sale proclamation under R. 67 of O. XXI of' Civil Procedure Code in accordance with law. The trial Court shall proceed further with the execution application expeditiously. Rule made absolute accordingly in both the revision applications.
11. Writ of this order shall be sent down to the trial Court forthwith.
12. Revision allowed.