Patna High Court
Virendra Kishore Shrivastava vs Kesharinandan Prasad on 10 March, 1961
Equivalent citations: AIR 1962 PATNA 410
ORDER Anant Singh, J.
1. This application in revision is directed against an order dated the 21st June, 1960, of the Execution Munsif of Muzaffarpur, passed in Execution Case No. 1056/506 of 1954, refusing to enlarge the time for depositing the balance of the decretal amount and thereby confirming the sale held in the said execution case on the 24th of January, 1955.
2. This case has a chequered history. It would appear that the opposite party brought a suit for recovery of possession and mesne profits and the court passed a decree for Rs. 5,385 and odd with interest at the rate of six per cent per annum until payment besides cost. There was an appeal by the petitioner when the amount of the mesne profits was reduced to Rs. 4,900. It was, however, before the appeal was filed that the opposite party put the decree in execution in the aforesaid execution case and brought to sale and himself purchased on the 24th of January, 1955, seven annas share of the petitioner in his milkiat interest including jirait lands etc. in touzi No. 5883 of Mouza Raghunathpur Basant in the district of Muzaffarpur.
3. The sale was held in six lots and the total sum fetched at the sale was Rs. 4,700, although the modified decree granted by the appellate court was for a few hundred rupees more.
4. It was in the appeal filed by the petitioner against the decree for mesne profits that an order for stay of confirmation of sale was made by the District Judge on the 10th of February, 1955. The appeal was disposed of on the 14th of March, 1955, reducing the amount of mesne profits, as mentioned above. There was a second appeal by the petitioner to the High Court in Second Appeal No. 897 of 1955, and in that appeal there was an order passed, staying confirmation of sale on the applicant depositing a sum of Rs. 2,500, which was actually deposited in the court below on the 5th of December, 1955. The stay order was passed on 10th of November, 1955. The decree-holder withdrew the amount on the 12th of December, 1955. This second appeal was dismissed on the 27th of February, 1959, when the order staying confirmation of sale was automatically vacated.
5. while the petitioner was pursuing his appeal before the District judge and in the High Court, he had also filed an application under Order 21 Rule 90 of the Code of Civil Procedure on the 7th of September, 1955, for setting aside the sale held in that execution case on the ground of fraud and material irregularity in publishing and conducting the sale. This application was dismissed on the 7th of December, 1955.
6. With the dismissal on the 27th February, 1959, of the second appeal of the petitioner, the order staying confirmation of sale in the execution case came to an end with effect from the same date.
7. It was on the 12th of March, 1959, that a petition was filed on behalf of the petitioner before the executing court under Sections 47 and 151 of the Code of Civil Procedure. It was alleged in that petition that as the decree of the trial court regarding mesne profits had been modified by the lower appellate Court, the sale, which had already taken place in execution of the decree, was not legally maintainable. It was further alleged that the decree-holder opposite party having wthdrawn a sum of Rs. 2,500, which was deposited by the petitioner judment-debtor in compliance with the order of the High Court as a condition precedent tothe staying of the confirmation of sale, the sale had become infructuous, and the decree-holder auction-purchaser was not entitled to have the sale confirmed. It was also alleged that as the decree-holder auction-purchaser had further with drawn another sum of Rs. 587-8-0, towards the satisfaction of the decree, which sum had been deposited by the petitioner, the sale had become infructuous. It was claimed that for the balance of the decree money of Rs. 2,672-8-0, the decree-holder could take a fresh execution and that the sale held on the 24th January, 1955, for Rs. 4,700/- could not be confirmed.
8. This petition was resisted by the opposite party on the ground that the sale could not be set aside, but that it should be confirmed without giving any further opportunity to the petitioner. As regards the deposit of Rs. 2,500, in pursuance of the order of the High Court, it was contended that the said money was not towards the decretal dues, but was by way of compensation, in tha.t the opposite party had been kept out of possession of the property after the sale. As regards the deport of Rs. 587-8-0, it was said that this amount was attached in a different execution case and had nothing to do with the decretal dues in question.
9. The executing Court, after hearing the parties, held that the sum of Rs. 2,500, was a part payment towards the decree and that the other alleged payment of Rs. 587-8-0 was not towards this decree. It further held that in view of the stay order granted by the High Court regarding the confirmation of sale, the petitioner could be granted a reasonable time to deposit the decretal dues. The executing Court passed the following order :
''Having thus considered the entire evidence and the aspects of the matter, I find that the circumstances of the present case that the Court in exercise of its inherent jurisdiction as vested under Section 151 Civil Procedure Code can call the judgment-debtor to pay the balance of the decretal amount together with cost and interest calculated up to the date within reasonable time and then set aside the auction sale held on 25-1-55 (which, however, is a mistake for 24-1-55). It is true that the applicant has not prayed for ordering him to deposit the balance of the decretal amount. His only prayer has been that the execution case be struck off and the decree-holder be directed to launch fresh execution for the realisation of the balance of the decretal amount. But in the circumstances of the present case, the only reasonable course which the Court can adopt is that which I have already indicated above. The execution case cannot be disposed of in part satisfaction of the decree nor the sale can be set aside unless the balance of the decretal amount is deposited by the judgment-debtor."
Accordingly, the executing Court allowed the petitioner-judgment-debtor time till the 10th of November, 1959, for paying the decretal amount together with the cost and interest calculated up to date when the said decree would be satisfied; otherwise, on failure to deposit the amount within the time allowed, it directed that the sale would stand confirmed.
10. Against this order, the opposite party decree-holder filed Civil Revision No. 948 of 1959 before this Court, which, however, was not admitted and was dismissed summarily by the order dated the 25th November, 1959.
11. It was, however, stated by learned Counsel for the opposite party that an appeal has since been filed before the District Judge of Muzaffarpur againat the aforesaid order of the executing court dated the 21st September, 1959, and the same is still pending.
12. After the aforesaid order of the 21st. September, 1959. the petitioner judgment-debtor on the 1st of October, 1959, filed a petition along with a chalan before the executing court, asking for permission to deposit, the balance of the decretal amount after proper accounting. The chalan was returned by the office on the 9th of November, 1959, The petitioner judgment debtor again filed a petition mentioning an account of the balance amount, which according to him, he was liable to pay, and requested the court to issue a chalam for Rs. 3378-33 nP., undertaking to pay any deficit if so found, and the amount was accordingly deposited. On the 11th November, 1959, the opposite party decree-holder filed a petition stating that the amount deposited by the petitioner judgment-debtor was insufficient, and, therefore, the order of the executing court dated the 21st September, 1959, was not fully complied with.
13. The parties joined issues on this point again as to whether the deposit by the petitioner was short or covered the full amount as per order of the executing court dated the 21st September, 1959, and, whether, in case of any shortage, the petitioner could be given any further time to deposit the balance. This master has been, disposed of by the executing court by order dated the 21st June, 1960, which is under revision. The executing court has held that the amount was short by Rs. 767.88 np. but it has refused to extend the time for depositing the same on the ground that it has no jurisdiction to extend the time at all It has accordingly held that the petitioner judgment-debtor having failed to deposit the decretal amount as ordered by it under its order dated the 21st September, 1959, the sale held on the 24th January, 1955, will stand confirmed and has ordered for the dismissal of the execution case on part satisfaction. AS for the deposit of Rs. 2,500 made by the petitioner in pursuance of the order of the High Court, it has head that the judgment-debtor is liable to refund the money for which he could take any legal action available to him. The petitioner judgment-debtor being aggrieved by this order, has filed this revision.
14. Mr. A.C. Roy, learned counsel for the petitioner, has raised two important questions before me. The first is that the amount deposited by the petitioner in pursuance of the order of the executing Court dated the 21st September, 1959, was, in fact, not short, but it coverd the entire decretal dues, and, if in any view of the matter, it was short, the executing Court should not have refused to extend the time for its deposit. The next question raised by him is that the property sold was the proprietary interest of the petitioner and this proprietary interest vested in the State on the 1st of January, 1956, long before the confirmation of sale. His contention is that on the date of vesting the sale had not been confirmed, and, therefore, after the vesting it could not be confirmed at all. In support of this contention reliance has been placed on a Bench decision of this Court in the case Ramchandra Bhagat v. Mrs Eva Mitra. AIR 1960 Pat 378.
15. Mr. Balbhadra prasad Singh, learned counsel for the opposite party, has, on the other hand, contended that this revision is not maintainable because an appeal lay to the District Judge from the order in question confirming the sale. As to the second point, his contention is that tho property sold comprised not only mere proprietary interest, but also contained some bakasht lands which did not vest in the State in view of Section 6 of the Bihar Land Reforms Act. it was not the entire interest of the judgment-debtor in the property that vested in the State. A fraction thereof having remained with him the entire sale will not fall through.
16. His further contention is that the order of the executing Court dated the 21st September, 1959, is completely without jurisdiction inasmuch as it had no power to grant time for depositing the decretal dues after the petitioner's application under Order 21 Rule 90 of the Code of Civil procedure had been dismissed in fact, it was argued, the judgment-debtor could not deposit the decretal dues after the expiry of 30 days even though the confirmation of sale had been stayed by the District Judge and thereafter by the High Court. It was further stated that the learned executing Court was entirely wrong in applying Article 16 of the Limitation Act, giving an opportunity to the judgment debtor to deposit the decretal dues. The provisions of the said article are applicable to the filing of suit or application for execution and not to an application for any deposit Under Order 21 Rule 90 of the Code of Civil Procedure. As a matter of fact, there was no such application made at any stage by the petitioner-judgment-debtor.
17. I shall first take up the question of maintainability of the application in revision. The order under revision is a two-fold order. The first is refusal to extend the time to deposit the decretal dues and the second is confirmation of sale. Mr. Roy contends that the petitioner has come not against the order confirming the sale, but against the order refusing to enlarge the time for depositing the decretal dues. His contention, however, does not appear to be correct. The order cannot be so split up. The effect of the order is that the sale stood confirmed by it. It was thus clearly an order within the meaning of Order 21 Rule 92 of the Code of Civil Procedure which provides f or the confirmation of sale after application under Rule 89, Rule 90 or Rule 91 of the Code has been disallowed or where no such application has been made. Any order passed under Order 21 Rule 92 of the Code is appealable as provided under Order 43 Rule 1 (j) of the Code.
18. For the next question whether the petitioner judgment-debtor had any saleable interest in the property on the date of vesting, would be a question not under Order 21 Rule 89 or under Order 21 Rule, 90 or under Rule 91, but it would be a question under Section 47 of the Code of Civil Procedure which again is appealable In such circimstance, if the petitioner judgment-debtor had raised this question in the Court, which, however, he did not press, then also an appeal would lie to the District Judge, and, therefore, no revision is maintainable at all. Section 115 of the Code of Civil Procedure is quite clear on the point that where an appeal lies, no revision can be entertained. I am, therefore, of the opinion, that this revision application in no view of the matter is maintainable. The petitioner judgment-debtor has had his remedy by way of appeal.
19. Since I have held that the application in revision is not maintainable, I do not think I would be in fairness to the parties, justified in expressing my opinion on the other points raised by the parties, namely, whether the order of the executing Court granting time for payment of the balance of the decretal amount long after 30 days from the date of the sale was without jurisdiction, whether there had been a compliance with it or not, whether the judgment-debtor had any saleable interest in the en, tire property or not, and whether for that reason, the sale should stand automatically annulled.
20. The revision application is dismissed, but the parties shall bear their own costs of this application.