Madras High Court
K.R. Athappa Chettiar vs G.R. Ramasethu And Anr. on 11 March, 1993
Equivalent citations: (1994)1MLJ612
JUDGMENT Mishra, J.
1. The plaintiff/respondent G.R. Ramasethu filed a suit in O.S. No. 342 of 1971 in the Court of Subordinate Judge of Madurai and obtained a money decree. The said decree was put in execution in E.P. No. 164 of 1973 and a house property belonging to the defendant-judgment-debtor V.S. Nammalvar was auction sold and purchased by the decree-holder himself. It appears however that this house property was sold by V.S. Nammalvar to the appellant on 9.2.1972. It also appears that the auction sale of the property concerned had preceded attachment before judgment in I.A. No. 555 of 1971 in O.S. No. 342 of 1971 order dated 9.8.1971 and the decree in the suit was on 30.11.1972 followed by E.P. No. 164 of 1973 for sale of attached property in the year 1973. According to the appellant, he had in fact negotiated for the purchase and paid a part of the consideration money i.e., a sum of Rs. 10,000 by means of a cheque to V.S. Nammalvar on 28.8.1971, in pursuance of a sale agreement reached between them, followed by the sale deeds execution and registration on 9.2.1972 for Rs. 49,000 and delivery of possession after some delay in February, 1972 from which date onwards the appellant has been in possession.
2. The case of the appellant who has been described as the petitioner by the trial court has been summaried as follows:
Ultimately, the petitioner got possession from him in February, 1973, from that time onwards the petitioner is in possession of the house. That house needed enormous repairs. The petitioner has done enormous repairs and improvements to the building. The value of house property in that locality is mounting up day by day. In September, 1979 the value of the house was Rs. 1,75,000. As the second respondent delayed giving vacant "possession of the house to the petitioner subsequent to the sale, the feelings between the petitioner and the second respondent became strained. This apart, the second respondent represented to the petitioner that he had mortgaged that house to one Veerappa Chettiar of Natarajapuram for Rs. 10,000 and that, that was the only encumbrance over the property. Subsequently it came to light that there was an earlier mortgage for Rs. 25,000 in favour of the said Veerappa Chettiar. The petitioner insisted on the second respondent discharging the entire mortgage. The second respondent was delaying the discharge of the mortgage debts. The petitioner was cheated by the second respondent. Ultimately, the second respondent discharged this mortgage by January, 1972. He did not vacate the tenant, who was in occupation of the downstairs portion. The tenant wanted some time to vacate was postponing. The second respondent has no property now. His whereabouts are not known on some occasion, he was seen in Madurai, but he avoided the petitioner. The price paid, the repairs and improvements effected by the petitioner have caused the petitioner heavy amounts. The petitioner is living in portion of the house, while the rest of the portions are under the occupation of the tenants.
In E.P. No. 164 of 1973, the house however was brought for sale in court auction on 3.9.1979 and purchased by the decree-holder himself. The sale also was confirmed on 3.11.1979. The appellant however, according to his case, came to know of it only on 11.3.1980 when the court ameen came to the house and informed him that the order to deliver possession to the first respondent had been passed. He raised objections before the ameen and also moved the court by filing a petition under Section 47 of the Code of Civil Procedure and/or Order 21, Rule 90, C.P.C. praying for setting aside the sale held on 3.9.1979 in E.P. No. 164 of 1973 in O.S. No. 342 of 1971 on the file of the trial court. The judgment-debtor V.S. Nammalvar remained ex parte. The decree-holder filed his return saying that the appellant's allegations in the petition for setting aside the sale were not true and had been invented for the purpose of the case. Besides stating many things generally stated in such rejoinders, the decree-holder/respondent maintained that the appellant should strictly prove the truth, validity and the binding nature of the sale transaction alleged by him and since he is a third party should also prove his alleged possession of the property. The appellant's case for setting aside the auction sale was that the sale was vitiated for the reasons of various irregularities afflicted by fraud and grossly under-valued etc, allegations, which were seriously contested by the plaintiff-decree-holder-auction purchaser. The trial court has after a detailed examination recorded on the basis of the evidence a categorical finding that the story that there has been a valid sale proclamation was not believable at all and it was a case where almost no sale proclamation was issued at all, and the irregularity in the publication of sale has caused substantial injury to the appellant. The trial court has also noticed that the sale proclamation was allegedly issued without any upset price and this is, in the background that the property was brought on several occasions for sale, but was not sold for want of bidders. Upset price was originally fixed and was gradually reduced finally to Rs. 5,000 subject to encumbrance of Rs. 35,000 for the sale on 11.6,1979 on which date also it was not said for want of bidders. But, the trial court has found:
The respondent/judgment-debtor was straight away set ex pane when he was found absent and the upset price was reduced to Rs.5,000. Under such circumstances it has to be held that there was no valid notice to the judgment-debtor i.e., 2nd respondent before passing orders reducing the upset price.
Observing also that the price which a property fetches in court-auction sale and the market value of the property are distant neighbours and dealing with the evidence on the record as to the value of the property and the ease law on the subject, particularly the judgment of the Supreme Court in Kayjay Industries (P) Limited v. Asnow Drums (P) Limited and Ors. and Radhey Shyam v. Shyam Behari Singh , the trial court has found:
So, there are sufficient circumstances to hold that the first respondent had committed fraud in the matter of publication and the sale proclamation by actively taking part in creating a record as if there was proper publication of the sale proclamation and publicity by beat of tom tom. As a result of lack of publication of sale, the property had been sold for a low price and the first respondent who is himself the decree holder had purchased the property with the leave of this Court.
The trial court judgment as left no question untouched including the ground as to bar of limitation to the application for setting aside the sale at the instance of the appellant.
3. On appeal, however, a learned single Judge of this Court has said that since the appellant was a purchaser of a property which has been under a court's attachment order, he had no enforceable claim as the sale in his favour was void and he had no interest in the property as to enable him to maintain (c)application as a representative of the judgment-debtor within the meaning of Section 47 of Order 21, Rule 90 of the Code of Civil Procedure. The learned single Judge has also said that the above apart, the application to set aside the sale has been filed beyond a period of 60 days of the date of sale and so barred under Article 127 of the Limitation Act, 1963.
After saying as above, the learned single Judge has also said:
The first respondent though he attempted to say that he did not have any knowledge of the institution of the suit.the attachment before judgment and the, other proceedings in his cross-examination as P.W.I was forced to admit that Anaamalai who had signed Ex. B-8, was his employee and he worked from 1975 and that he (P.W.I) used to go out often for business purposes. Ex. B-8 had been signed by the employee of the first respondent and it is not the case of the first respondent that Annamalai was not authorised to receive letters on his behalf. It therefore follows that the first respondent had knowledge of the proceedings in O.S. No. 342 of 1971 even as far back as 8.1.1977 when Ex. D-5 had been, received, and his case that he became aware of the proceedings only on 11.3.1980 at the time when the amin came to deliver possession of the property pursuant to the court auction sale, cannot therefore be accepted. Though the first respondent had also stated that by practice of fraud, he did not have the knowledge of the proceedings he had not given the particulars with reference to the so called acts of fraud and he had not also substantiated the same by reliable or acceptable evidence. On the evidence, no fraud at all has been established and the case of the first respondent that owing to fraud he did not have the knowledge of the proceedings in O.S. No. 342 of 1971 cannot, therefore, be accepted. It follows that the first respondent had knowledge of the attachment the passing of the decree as well as the invalidity of the private sale in his favour after attachment even on 8.1.1977 and he should have, therefore, taken step atleast within three years thereafter, assuming that Section 47, C.P.C. would be applicable. Therefore, even considering the application filed by the first respondent as maintainable and falling under Section 47 and Order 21, Rule 90, C.P.C it is seen that the application filed on 31.3.1980 was hopelessly out of time.
Section 64 of the Code of Civil Procedure states as follows:
64. Private alienation of property after attachment to be void : Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.
Explanation: For the purpose of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.
There has been many occasions that one or the other party invoked Section 64 to deny any validity of sale, gift or otherwise transfer of interest in property and in cases under Section 240 of the old Civil Procedure Code, VIII of 1859 corresponding to Section 64 of the present Code, this provision was always read to convey that all alienations during the continuance of attachment were null and void. When, however, an issue in this behalf was specifically referred to a Division Bench of this Court in the case of K. Balachandran v. A.M. Muthayyan Mudaliar 87 L.W. 812, the court after quoting Section 240 of the Code noticed the obvious distinction between the old and the new provision in this behalf in these words:
One of the differences between this section and Section 64 of the present Code, is while in the present Code, the alienation subsequent to the attachment is held to be void only as against all claims enforceable under the attachment, Section 240 of the Act VIII of 1859 generally stated that the alienation during the continuance of the attachment shall be null and void. It may be noted at the outset that Section 64 of the present Code is narrower in its effect regarding alienations during the continuance of attachment than Section 240 of the earlier Code quoted above.
Finally after considering all relevant case law available till then said:
It is abundantly clear that neither Section 64 of the Code nor the corresponding provision in the earlier enactments made private alienation void for all purposes. Section 64 specifically says that the transaction is void only as against all claims enforceable under the attachment. As pointed out in the first of the cases quoted above a private alienation when an attachment is in force is not void, against the whole world. But the further question is whether the benefit of the attachment is available only to the attaching creditor. The plain words of Section 64 show that it would be incorrect to say that the attachment was only for the benefit of the attaching creditor. In a case where a private alienation is effected while an attachment is in force, certainly, the auction purchaser of the attached property can invoke Section 64 of the Code and successfully contend that the private alienation is void as against him.
But we are clearly of the opinion that even though Section 64 of the Code can be invoked, "decrees and the benefit being for the decree-holders they can waive the benefit. As is that case the decree holders had entered into an actual contact with the purchasers...."
The Bench also added:
All that we wish to say is that those decisions would have no application to a case coming under Section 64 if the Code and even if the property is sold in court auction subject to the impugned alienation, if, the alienation is void under Section 64 of the Code, the auction purchaser can certainly take advantage of the said provision inspite of the fact that he purchased the property in the court auction subject to such alienation.
This law has been reiterated on a number of occasions by the courts. This principle of law should not detain us further as the Supreme Court has also said in S.G. Films Exchange v. Brijnath Singhji , on the applicability of Section 64, C.P.C. as follows:
As regards the applicability of Section 64, Civil Procedure Code, we find that parties disagree on the question whether the attachment made by the Central Bank on 20.4.1955, in execution of the decree of which the plaintiff-respondent was the assignee existed on the date of the impugned lease of 30.3.1956. Learned Counsel for the appellant relied upon the terms of an order recorded on the order sheet, in the Court of Additional District Judge, Jabalpur, in Civil Suit No. 3-B of 1952 on 25.1.1956 showing that in view of the stay order received from the High Court, execution could not proceed. The order sheet, however, also contains the enigmatic statement that execution was dismissed as in fructuous but the attachment was to continue for six months. The High Court had treated the last part of the statement in the order sheet as void and in effective presumably on the ground that the Additional District Judge had no jurisdiction either to lift the attachment or to dismiss the execution proceedings after the High Court had given its order staying all further action in execution proceedings. The terms of the High Court's order are not evident from anything placed before us. On the other hand, learned Counsel for the plaintiff-respondent relies upon a subsequent order of the same court, passed on 30.4.1960, in the same suit. The order shows that a compromise had been arrived at between the decree-holder and the judgment-debtor under which the decree-holder had agreed to lift attachment of property except with regard to Plaza Talkies which was to continue. We are therefore, unable to hold that the concurrent findings of the trial court and the High Court that the Plaza Talkies was attached in execution of decree in Suit No. 3-B of 1952 on 4.5.1955 and that this attachment was in existence when the impugned lease was executed on 30.3.1956 are erroneous. On these findings, the lease of 1956 was certainly struck by the provisions of Section 64, Civil Procedure Code also, Section 64, C.P.C. In fact, constitutes an application of the doctrine of lis pendens in the circumstances specified there.
The judgment of the Supreme Court in Nancy John Lyndon v. Prabhati Lal , is also to the effect that where the sale by a judgment-debtor of the property attached in execution was effected during the subsistence of the attachment, it is void for the purpose of Section 64 of the Code. This provision in the Code states a rule that lis pendens any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. Thus all private transfers or delivery of the property attached or interest in the property, etc. mentioned in this provision, are not void or at least not void in all cases and in all circumstances. They are void, "as against all claims enforceable under the attachment." What claims are enforceable under the attachment, however, has to be understood with reference to the facts of each case. A Bench of this Court had the occasion to discuss a matter not exactly as before us, but with substantial similarity in the facts in the case of Angu Pillai v. M.S.M.K. Chettiar . That was a case of a money decree like the one before us and attachment of certain properties in execution of that decree was ordered. A claim under Section 47 of the Code, however, was raised by one Kasi Viswanathan Chettiar contending that certain money had been deposited with the joint family by his mother who died and he as the sole heir was entitled to the said amount. Accordingly, his father had executed an agreement agreeing to mortgage the properties against which attachment was sought for. He accordingly maintained that decree-holder could bring the properties for sale only subject to the agreement. In another suit also he raised a similar plea. The defences in both the cases were that the alleged deposit was not true and that the alleged agreement was neither true nor valid. Objections in this behalf were dealt with in some detail with reference to the law as engrafted in Section 54 of the Transfer of Property Act and Section 64 of the Code of Civil Procedure. The Bench has said,
8. The right of a promisee under a prior agreement of sale as against the subsequent attachment and the rights of a court auction purchaser under that attachment have been considered in several decisions of this Court beginning as early as in Savitri Ammal v. Ramasami . See also Veerappa Thevar v. Venkatarama Iyer 69 M.L.J. 678 : A.I.R. 1935 Mad. 872 : 1935. M.W.N. 942 : 42 L.W. 544 : 158 I.C. 940. I.L.R. 59 Mad. 1. The entire case law is reviewed in Diraviyam Pillai v. Veeranan Ambalam . There, the suit properties belonged to a Hindu joint family consisting of five brothers and the sons of four of those brothers. A decree had been obtained for money payable by the five brothers personally and from out of the family properties in the hands of the brothers and sons. In execution of the decree, the decree-holder attached only the interest of the sons in the joint family properties on 15.3.1933, as the brothers had been already adjudicated insolvents in June, 1927. But even prior to the adjudication the brothers had on 24.7.1926, entered into a contract to sell the suit properties to one V and under orders of the Insolvency Court the Official Receiver executed a sale deed in favour of V on 6.11.1931. The decree-holder contended that the sale was invalid as by virtue of the attachment of the son's interest before the sale deed was executed, the power of the brothers and of the Official Receiver as representing their estate to convey the son's shares must be deemed to have come to an end. Varadachariar, J. speaking for the court, observed that as there was in existence, prior to the attachment a contract of sale entered into by the brothers at the time when the family was joint and as they had the power to sell also the son's interests in the properties, the sale in pursuance thereof is not one contrary to the terms of Section 64, C.P.C. and was, therefore, not affected by the attachment. The learned Judge has pointed out that the right of the judgment-debtor in the property was on the date of the attachment qualified by the obligation, incurred by him under the earlier contract to sell and that the attaching creditor cannot claim to ignore that obligation. It was, therefore, held that sale by the contracting parties in pursuance of the preexisting contract to sell cannot be said to prejudice the attaching creditor. In coming to this conclusion, the learned Judge has referred to Section 64, Civil Procedure Code which merely provides that any private transfer by the judgment-debtor of the property attached shall be void as against all claims enforceable under the attachment. It is not correct to read Section 64 as putting an end to the power of sale because as between, the transferor and the transferee, the alienation will undoubtedly be operative. The attachment in execution of a decree does not create any interest in favour of the decree-holder in the property.
9. A single Judge of this Court Wadsworth, J. on Athinarayana Konar v. Subramania Iyer , had to consider a similar case of a prior contract of sale of a property that was subsequently attached in execution of a decree. Following Diraviyam Pillai v. Veeranan Ambalam , the learned Judge held that though a contract to sell land does not create any interest in or charge on the property it does give rise to an obligation which limits the right of the owner and any attachment of the right, title and interest of the owners subject to any such limitation by which he was bound.
10. An attaching decree-holder attaches not the physical property but only the right of the judgment-debtor in the property. As recognised in Section 40 of the Transfer of Property Act the right of the judgment-debtor in the property is, on the date of the attachment qualified by the obligation incurred by him under the earlier contract to sell and the attaching creditor cannot claim to ignore that obligation and proceed to bring the property to sale as if it remained the absolute property of the judgment-debtor. If the attachment is followed by a court sale and the purchaser at the court sale had no notice of the obligation, he may get a good title and the premises under the private contract would be left to seek his remedy against his promisor.
4. It will be thus not correct without knowing the nature of the claim of the appellant by virtue of transfer by the judgment-debtor of the property which has been attached in the suit alone, to hold that the transfer is void for all purposes or that the transferee cannot plead some interest in the property for the locus standi to object to any auction sale of the property in attachment for realization/satisfaction of money decree. According to the appellant, we have already noticed, he had initiated for the purchase and paid a part of the consideration money by means of a cheque dated 28.8.1971 in pursuance of a sale agreement followed by the sale deed dated 9.2.1973 and obtained delivery of possession in February, 1973 from which period he has been in possession of the property. Attachment is said to have been ordered in the money suit on 9.8.1971 and effected on 15.8.1971. It is a case thus wherein, if the case of the appellant is proved that he had entered into an agreement for the sale of the property before the attachment was effected, thus his case is one in which one may say, as has been said by a learned Single Judge of this Court in Athinarayana Konar v. Subramania Iyer , that though a contract to sell land does not create any interest in or charge on the property, it does give rise to an obligation which limits the right of its owner and any attachment of the right title and interest of the owner is subject to the limitation by which he was found. It will be erroneous in the absence of adjudication of this aspect of the case, therefore to hold as has been held by the learned single Judge in the first appellate judgment that the sale by the judgment-debtor in favour of the appellant of the property under attachment has been void. The auction-purchaser's plea of bar under Section 64 has wrongly been sustained by him without taking notice of the fact whether there has been an agreement as alleged by the appellant or not and if such agreement existed, it had created an obligation subject to which alone the attachment operated or not.
5. On the question of limitation, again, we say so with respect, there appears to be an obvious error in the impugned judgment. The period of limitation of 60 days under Article 127 of the Limitation Act to set aside a sale in execution of a decree including any application by a judgment-debtor for thesaid purpose from the dateof the sale, must mean from date of confirmation of the sale, because unless confirmed, there is no sale at all. How the sale in execution of a decree is effected is fully spelled out in Rules 64 to 106 of Order 21 of the Code of Civil Procedure. The appellant, who has not been the judgment-debtor nor a tenant of the judgment-debtor, but according to him has been in occupation of the property, could resist the execution of the sale by delivery of possession to the auction purchaser and on such resistance or obstruction to possession by the appellant, the holder of the decree who in the instant case happens to be the court auction purchaser, could make application to the court complaining of such resistance or obstruction and for orders to remove the obstruction. The decree-holder/auction-purchaser could obtain order of dispossession only after determination of the questions such as right, title on interest in the property arising between the parties, that is to say, the appellant on the one hand and the judgment-debtor and decree holder on the other hand, as contemplated under Rule 101 read with Rule 98 of Order 21 of the Code. The plea that these rules were not applicable because the judgment-debtor had transferred the property pendente lite as is said under Rule 102 of Order 21 of the Code, however, in the instant case would require adjudication of the effect of the agreement upon which the appellant relied for basing his claim to the suit property. In any case, however, Rule 90 of Order 21 of the Code gave to the appellant, a right to apply to the court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it, if not as the purchaser, at least as the person whose interest was affected by the sale. The interest which operate as obligations upon his vendor under the agreement for sale and subject to which obligations alone the attachment operated. He could apply within 60 days of the sale for setting it aside. Section 47 of the Code is a comprehensive provision which says that all questions arising between the parties to thesuit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit, including the question whether any person is or is not a representative of another party. It is thus not against the Rules when the appellant moved the court for setting aside the sale by an application under Rule 90 of Order 21 of the Code as the purchaser or at least whose interests were affected by the auction sale and invoked the court's jurisdiction under Section 47 to decide his capacity as well as his objections to the sale of the property in question.
6. Section 17 of the Limitation Act says where, in the case of any suit or application for which a period of limitation is prescribed by the Act, the suit or application is based upon the fraud of the defendant or respondent or his agent, or the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid, or the suit or application is for relief from the consequences of a mistake, or where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation should not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production. Exception to this, however, are the following and no suit shall be filed affecting any property which-
(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have person to believe, that any fraud had been committed, or (ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or (iii) in the case of a concealed document, has been purchased for valuable consideration' by a person who was not a party to the concealment and did not at the time of purchase know, or have reason to believe, that the document had been concealed.
Besides the above, there is a specific provision in Sub-section (2) which states that where a judgment-debtor has, by fraud, or force, prevented the execution of a decree or under within the period of limitation, the court say, on the application of the Judgment creditor made after the expiry of the said period extend the period for execution of the decree or order, provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be.
It is thus seen that an application to set aside a sale which is required to be filed within 60 days of the sale under Article 127 of the Limitation Act has to be extended when it is alleged in the suit or proceeding that the defendant or respondent or his agent committed a fraud until the date of the discovery of the fraud and without adjudication in this behalf to say that the suit or application has been filed after the expiry of 60 days of the sale and therefore, is barred by limitation will be entirely wrong. There is absolutely no attempt in the court below to as certain as to when the appellant herein discovered the fraud and whether this has been a true or genuine allegation in his application to set aside the sale, except the words in the cross examination of P.W. 1 first respondent before it i.e. the appellant herein, admitting that Annamalai who had signed Ex. B-8 was his employee and he worked from 1975 and that he used to go out often for business purposes. Learned appellate Judge has found that Ex. B-8 had been signed by an employee of the appellant and then said, ...it is not the case of the first respondent that Annamalai was not authorised to receive letters on his behalf. It therefore, follows that the first respondent had knowledge of the proceedings in O.S. No. 342 of 1971 even as far back as 8.1.1977 when Ex. B-5 had been received, and his case that he became aware of the proceedings only on 11.3.1980 at the time when the Amin came to deliver possession of the property pursuant to the court auction sale, cannot therefore be accepted.
We say so with all constraint that it is nothing but conjecture that has led learned single Judge to hold that the appellant had knowledge of the proceedings in O.S. No. 342 of 1971 even as for back as 8.1.1977. It is well-settled that legal inferences are permissble but there is a clear line of division between an inference as a fact and a conjecture. There is no evidence that Annamalai was authorised any time by the appellant to receive any notice on his behalf or act as his agent or servant, so that the appellant could be bound by his acts. Merely because Annamalai has been found to be an employee of the appellant, it cannot be said that he has the authority to act on behalf of the appellant. It is indeed putting the cart before the horse, if it is said that the appellant had to plead a case that Annamalai was not authorised to receive letter son his behalf. If the decree-holder/auction-purchaser respondent disputed the case of the appellant that he came to know of the proceeding when the Amin came to deliver possession of the property, pursuant to, court auction sale, and pleaded that the appellant know about the proceedings in O.S. No. 342 of 1971 from before, the onus was upon him to show that Annamalai who was an employee of the appellant was authorised to receive letters on his behalf and, therefore, the acknowledgement in Ex. B-8 by Annamalai amounted to acknowledgement by the appellant himself. For the above reasons, we are inclined to hold that leaned appellate Judge has erred in holding that the appellant had filed the application to set aside the sale beyond the period of limitation in Article 127 of the Limitation Act.
7. We have in our judgment made reference to the considerations that operated in the mind of the trial court in coming to the conclusion that the sale of the property in question is vitiated by fraud. Learned Appellate Judge, however, has dealt with this aspect of the case in these words, only:
Though the first respondent has also stated that by practice of fraud, he did not have the knowledge of the proceedings he had not given the particulars with reference to the so-called acts of fraud and he had not also substantiated the same by reliable or acceptable evidence. On the evidence no fraud at all has been established and the case of the first respondent that owing to fraud he did not have the knowledge of the proceedings in O.S. No. 342 of 1971 cannot, therefore, be accepted.
and has said nothing beyond this, on the specific findings recorded by the trial court that it was not possible to believe that there has been a valid sale proclamation and that it was a case where almost no sale proclamation was issued at all and the effective finding in this behalf of the trial court has been extracted by us in our judgment, that the first respondent had committed fraud in the matter of publication and the sale proclamation by actively taking part in creating record as if there was proper publication of the sale proclamation and publicity by beating of tom tom and as a result of lack of publication of sale, the property had been sold for a lower price and first respondent who is himself the decree-holder had purchased the properly with the leave of the court. Since the appellate court had interfered with the judgment of the trial court, which is based upon such specific findings of substantial irregularities and of fraud in the matter of publication and sale proclamation and the substantially low value on which the decree holder has himself purchased the property, on a clearly erroneous view of law and fact, we have no other way but to interfere with the same and we accordingly set it aside.
8. We may however record before we part with the judgment that we thought that the matter can come to an end by payment to the decree-holder purchaser the amount specified in the proclamation of sale, for which recovery the sale was ordered as well as a sum equal to five per cent of the purchase money adjusted equitably to meet the decree and the cost is any, which the decree holder incurred in realising the decretal money. We accordingly permitted the appellant to seek a withdrawal of the application under Order 21, Rule 90 of the Code without which he could not take resource to Rule 89 thereof and directed the appellant to deposit as above. In compliance with our order, the appellant has deposited the aforementioned amount in court and has also made an application to withdraw the application under Order 21, Rule 90 of the Code, upon which application the instant proceeding started and has since been before us in appeal. Learned Counsel for the respondent, however, has reasons to resist for, accordance to him, the limitation under Article 127 of the Limitation Act is for both the applications under Rule 90 as well as Rule 89 and if the application under Rule 89 is not filed within the period of limitation as is contemplated for the application under Rule 90 of the Code, it should be held to be barred by limitation and thus while it may be open to the appellant to withdraw the application under Order 21, Rule 90 his application under Rule 89 will be barred by Limitation. He has for the said reason made serious objections and also drawn our attention to Sub-rule (2) of Rule 92 of Order 21 of the Code. He has submitted that in the event of withdrawal of Rule 90 application, it would create another bar to the deposit must be made within 30 days from the date of sale in the case of an application under Rule 89 which is not complied with. He has drawn our attention to the judgment of the Supreme Court in P.K. Unni v. Nirmala Industries , in which it has been held that the limitation for making deposit within 30 days from the date of sale under Rule 92(2) is independent of the Rule under Article 127 of the Limitation Act which prescribes 60days time from the date of sale to file an application to set aside the sale. The Supreme Court has said that the words in Sub-rule (1) of Rule 89 may apply to have the sale set aside on his depositing in Court. When read with Sub-rule (2) of Rule 92 which says what in the case of an application under Rule 89 the deposit required by that rule is to be made within 30 days from the date of sale, means deposit is a condition precedent to the making of an application to set aside a sale and the condition precent is that the deposit should be made within 30 days of the sale.
9. Although we have been addressed at length at the Bar with respect to the role that these two rules come to play in the matter of making of an application under Rule 89 of Order 21 of the Code, for setting aside the sale on deposit in court for payment to the purchaser and to the decree-holder, we think it is now inconsequential whether the deposit is made within 30 days from the date of sale or not in the instant case. It is however, necessary as we find from the judgment of the Supreme Court that there is no such inhibiting created to examine whether Section 17 of the Limitation Act shall play its role in the matter of period of limitation under Sub-rule (2) of the Rule 92 of Order 21 of the Code or not, and how the court in a situation when, in course of a proceeding under Order 21, Rule 90 to set aside the sale on ground of irregularity or fraud, it is thought desirable to order deposit in terms of Rule 89 of Order 21 would achieve the purpose on the face of the rule in Sub-rule (2) of Rule 92 of Order 21. It is an objection, however, not confined to the technicality as to the deposit within or beyond the period of limitation, but also on the basis of the language in Rule 89(2) of Order 21, wherein it is said that 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.
10. It is no doubt true that the appellant herein has made the application to withdraw the application under Order 21, Rule 90 of the Code. He has also deposited the money as above. The court, however, has made no order on the application to withdraw the application under Order 21, Rule 90 of the Code. Learned Counsel for the respondent, however, has urged that a person making such application cannot later back out and on his mere making the application to withdraw the application under Order 21, Rule 90, the court must hold that Order 21, Rule 90 application is no longer effective. We can, however, refer to two judgments of the Punjab and Haryana High Court in Joginder Kaur v. Financial Commissioner Punjab and Parkash Kaur v. Sandhooran . Wherein a view has been expressed that application to set aside sale under Order 21, Rule 89 is not maintainable after application to set aside sale under Order 21, Rule 90 is dismissed and in the latter case is particular, it is said, From a reading of Rules 89 and 90 of Order 21 it is apparent that the judgment-debtor has no right to apply for setting aside a sale under Order 21, Rule 89. In case he has filed an application for seating it aside under Order 21, Rule 90 and in case he first filed an application under Order 21, Rule 39 and thereafter an application under Order 21, Rule 90 he has no right to prosecute the earlier application.
and further, In view of Order 21, Rule 89, if an application under Order 21, Rule 90 as pending in the executing court, the petitioner had no right to make an application under Order 21, Rule 89. If she wanted to do so, she should have withdrawn first the application under Order 21, Rule 90. The petitioner filed an application under Order 21, Rule 89, inspite of the fact that an application under Order 21, Rule 90 was pending. The limitation for filing an application under Order 21, Rule 89 or Rule 90, is 30 days from the date of the sale. She filed both the applications within 30 days of the sale and thus these were within limitation. But as already observed above, the application dated September 23,1974 was not maintainable in view of the pendency of the application under Order 21, Rule 90. The counsel for the petitioner withdrew that application on November 23, 1974. On that date, the time for filing an application under Order 21, Rule 89 had passed. The application under Order 21, Rule 89 can be said to be duly presented on November 23, 1974, but as the limitation for filing that application had expired, consequently it cannot be treated to be within limitation and is liable to be dismissed as such. 8. The contention of the learned Counsel that it was the duly of the court to ask for the option of the petitioner as to whether she wanted to proceed with the application under Order 21, Rule 89 or under Order 21, Rule 90 has also no substance. The petitioner while making an application under Order 21, Rule 89 stated specifically therein that she wanted to pursue the earlier application for setting aside the sale. In the circumstances the application under Order 21, Rule 89 was not maintainable. The question of option therefore did not arise.
These objections, however, on the facts of the instant case, are of no consequence to the parties, since we have come to the conclusion that the finding recorded by the trial court is correct and affirm accordingly that there is no question of any deposit under Rule 89 of Order 21. The deposit in such a situation can be, however, still permissible under Rule 55 of Order 21 of the Code, which will automatically remove the attachment. We, accordingly order in the instant case that the amount in deposit in this Court shall be remitted to the executing court and allowed to be appropriated for the satisfaction of the decree and for consequential orders accordingly. In the result, the Letters Patent Appeal is allowed. The impugned judgment in appeal viz. Transfer C.M.A. No. 647 of 1988 is set aside and that of the trial court is affirmed. The money in deposit in Application (C.M.P. No. 16879 of 1992) is directed to be remitted to the executing court for appropriation in satisfaction of the decree and consequential orders accordingly. No costs. The application under Order 21, Rule 90 of the Code is allowed with costs throughout, hearing fee Rs. 5,000 (Rupees five thousand).