Kerala High Court
Kunhambu vs Geetha on 12 January, 2001
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
ORDER M.R. Hariharan Nair, J.
1. The judgment-debtor in E.P. No.86/93 in O.S.No.50/87 of the Sub Court, Payyannur, wants to review the order of this Court passed in C.R.P. No. 1068/96 on 29.11.1996. The said Civil Revision petition was challenging the order passed by the execution court on 7.7.1995 refusing to review the order confirming the sale conducted in the case with regard to an extent of 1.06 acres of land belonging to the judgment-debtor for a sum of Rs. 15,025/-. On consideration of the contentions raised by the judgment-debtor, this Court found as per the impugned order that there is no scope for interfering with the order of the execution court.
2. The thrust of the argument of the learned counsel for the petitioner is that while passing the order in the Civil Revision Petition, this Court failed to correctly appreciate the impact of the amendment to the Code of Civil Procedure with regard to the Kerala Amendment brought to O.21 R.85 of the CPC and that if correctly construed, it could be seen that the entire amount including the cost of stamp paper, as contemplated in the Kerala Amendment, had not been deposited by the decree holder and on that ground alone the order of the execution court should have been interfered with. Secondly, it is argued that the sale was for a grossly inadequate price and that the Court failed to exercise its jurisdiction under O. 21 Rr. 64 and 66 of the CPC which renders the sale conducted void and that that aspect should also have weighed with this Court to invalidate the order of the execution court refusing review.
3. The learned counsel for the respondent decree-holder submitted that there is no scope for interfering with the order for either of the grounds. Relying on case law.
he emphasised that when there is conflict between the provisions in the C.P.C. as amended in 1976 and Kerala Amendment which had been brought in earlier which are inconsistent with each other, it is the provisions in the 1976 Act that will prevail and that if so construed, there is no deficiency in the deposit made by the decree-holder with regard to the sale price. Thirdly, it is pointed out that as long as the judgment-debtor does not challenge the validity of the sale by filing appropriate petition under O.21 R. 90 of the CPC or challenges the validity of the sale on any other ground by filing application under S. 47 of the CPC, what the court has to look into is only whether there is any deposit as contemplated by law justifying interference with the Court sale already conducted and that in the absence of any such deposit or a petition under O.21 R.90 of the CPC, it has to confirm the sale. It is pointed out that in the instant case the petitioner had failed to challenge the validity of the sale held on 12.7.94 at the appropriate siage. He also failed to file any petition under S. 47 of the CPC challenging the jurisdiction of the court to conduct the sale within the limitation period of three years and that in the circumstances, there is no justification to interfere with the order dated 7.7.95 and in that perspective the order of this Court challenged in the review is also fully justified.
4. O. 21 R. 85 of the CPC as amended in 1976 provides as follows:
"85. Time for payment in full of purchase-money.-The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property.
Provided that, in circulating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under R. 72."
5. O.21 R. 85 of the CPC as it stood amended in Kerala and as available at the time of the Central amendment mentioned above stood as follows:
"85. Time for payment in full of purchase money.-The full amount of purchase-money payable together with the amount required for the general stamp paper for the certificate under R. 94 shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the date of the sale of the property:
Provided that, in respect of the purchase-money, the purchaser shall have the advantage of any set-off to which he may be entitled under R. 72."
It can be seen from a comparison of the two provisions that the Kerala Amendment insisting that the deposit of purchase-money "together with the amount required for the general stamp paper for the certificate under R. 94" was not necessary under the amended provision. Deposit of the full amount of purchase-money alone was sufficient. Here is a case where the auction purchaser had originally failed to deposit the amount required for the general stamp paper for the certificate under R. 94 and that according to the judgment-debtor, makes the confirmation of the sale invalid.
6. The impact of the Central amendment on the State amendment came up for consideration in several decisions of this Court as also of the Apex Court. In Ananthan Sreedharan v. Sankaran Sukumaran (1991 (1) KLT 114), the very same question, as raised in the present case, came up for consideration. The revision petitioner had raised the contention that the decree-holder did not pay the required amount for the stamp paper for the certificate under R. 94 and so the sale was a nullity. This Court held that as the sale took place after the CPC. Amendment Act 104 of 1976, the impacl of S. 97(1) of the said amending Act has to be considered. Under the said provision, any amendment made or any provision inserted in the principal Act by a State legislature or a High Court before the commencement of the Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by the Act stand repealed. Applying the dictum in Ganpat Gin v. Second Additional District Judge (AIR 1986 SC 589), this Court found that R.85 (Kerala) was inconsistent with the provisions of the principal Act and as such the Kerala Amendment cannot have any application and so the failure to pay the required amount for the stamp paper within 15 days from the date of sale docs not invalidate the sale. It was also held that the Rule applicable is not the Kerala Rule, but the Rule under the Principal Act which contains no mandate as to the payment of the amount for stamp paper within 15 days from the date of sale.
7. The impact of the Central Amendment came up for consideration in Pt. Rishikesh & Anr. v. Salma Begum ((1995) 5 SCC 718) also though not with reference to the Kerala Amendment. The impact of Art. 254(1) of the Constitution of India was also considered therein. The Court found that in deciding the question of repugnancy, it must be shown that the two enactments contain inconsistent and irreconcilable provisions so that they cannot stand together or operate in the same field. There could be no repeal by implication unless the inconsistency appears on the face of the two statutes. Both statutes, if operate in the same field without coming in collision with each other, there would be no repugnancy. It was also held that if Parliament amends the law, after the amendment made by the State Legislature has received the assent of the President, the earlier amendment made by the State Legislature, if found inconsistent with the Central amended law, both Central law and the State law cannot coexist without colliding with each other. Repugnancy thereby arises and to the extent of the repugnancy the State law becomes void under Art. 254(1) unless the State Legislature again makes taw reserved for the consideration of the President and receives the assent of the President. As regards the provisions of 0.21, R. 85 of the CPC, there was no such fresh amendment brought in Kerala and hence by virtue of the aforesaid dictum, the State amendment will not be enforceable if there is repugnancy between the two provisions.
8. The aspect of repugnancy may now be considered. Under the Kerala Amendment, the auction purchaser has to deposit, besides the purchase-money, the amount required towards stamp paper for the certificate under R. 94 as well. Under the Act 104 of 1976, the deposit of the stamp value is not essential. Certainly, there is difference between the amount payable under the two provisions and the repugnancy definitely exists. iD the circumstances, I am of the view that after the enactment of Act 104 of 1976, the provision in the Kerala Amendment which makes it mandatory for the auction purchaser lo deposit the stamp value as well is unenforceable. It follows that there is nothing erroneous available in the order of this Court in the matter of refusal to interfere with the order of the execution based on the provisions in 0.21 R. 85 of the CFC.
9. I now come to the question whether the impugned order is revisable for the reason that this Court did not consider in detail, the contention regarding in validity of the sale based on totally insufficient consideration and the alleged failure on the part of the execution court to apply its mind and to specify the portion of the property that should be sold for fetching the decree amount. A perusal of para 8 of the order of this Court that is sought to be reviewed shows that this Court did consider the aforesaid contention of me petitioner. This Court noted that this is a ground on which the revision petitioner could have filed objections before confirmation of sale and as no such objections were filed in time, he cannot be heard on that ground by this Court under S. 115 of the CP-C.
10. The question that arises for consideration now is whether there is any error apparent on the face of the record which is to be corrected in exercise of the power of review. I find considerable substances in the contention of the petitioner that the sale in question look place for a grossly inadequate amount and that there was failure on the part of the execution court to decide whether it was necessary to sell the entire 1.06 acres for fetching the E.P. amount of Rs. 4,283/-. The sale was for a sum of Rs.15,025/-- The contention raised by the petitioner in para 4 of the application for review filed before the execution court was that instead of 1.06 acres even sale of 6 cents could have fetched the required amount. There is nothing to show that the execution court had applied its mind with regard to the necessity for selling the entire property. However, there is also nothing to show that the petitioner had raised that question before the execution court at the appropriate stage. According to the learned counsel for the petitioner, even when the contention remains unraised by the judgment-debtor, the court was duly bound to consider the extent of land to be sold. Reliance was placed in this regard on the decision in Ambati Narasayya v. M. Subba Rao (1990 (1) KLJ 213) where it was held as follows:
"It is of importance to note from this provision that in all execution proceedings, the court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree to be satisfied is small, the court must bring only such portion of the property, the proceeds of which be sufficient to satisfy the claim of the decree-holder. It is immaterial whether the property is one or several. Even if the properly is one, if a separate portion could besold without violating any provision of law only such portion of the property should be sold. This is not just a direction, but an obligation imposed on the court. Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without jurisdiction".
11. The learned counsel for the petitioner contends that in so far as there was failure to examine the extent of land to be sold and in view of the observations of the Apex Court that such sale is without jurisdiction, the sale deserves to be set aside and that in any event, it should not have been confirmed as done by the execution court in the order impugned in the revision. The want of jurisdiction of the court, as already mentioned, is a matter that should have been taken up by filing a petition under S. 47 of the CPC and in the absence of any such petition it is too late now to take up that contention.
12. O. 21 R. 92 of the CPC provides that where no application is made under R.89, R.90 or R.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. The said provision is subject to a proviso to the effect 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 with regard to the attachment over the property. According to the learned counsel for the decree-holder, in such circumstances, the confirmation of the sale is automatic and there was no further question arising for consideration of the execution court and in that perspective the order dated 7.7 J 995 did not suffer from any defect.
13. Mohammed Ismail Rowihar v. Vdayudhan (1964 KLT 720) considered the nature of the order required for confirmation and it was found that in the absence of any petition challenging the validity of the sale brought under 0.21 R. 90 of the CPC, the court has nothing further to adjudge and the order of confirmation of sale is a matter of course. Janak Raj v. Gurdial Singh (AIR 1967 SC 608) also went into the question. It was held that a purchaser's title relates back to the date of sale and not from the confirmation of sale. There is no provision in the CPC either under O. 21 or elsewhere which provides that the sale is not to be confirmed if it be found that the decree under which the sale was ordered has been reversed before the confirmation of sale. It does not seem ever to have been doubted that once the sale is confirmed the judgment-debtor is not entitled to get back the property even if he succeeds thereafter in having the decree against him reversed.
14. The learned counsel for the decree-holder also took me through a old decision of the Madras High Court in Sorimuthu v. Muthukrishna (AIR 1933 Madras 598) where it was held that the language of the Rule (O. 21 R. 92) is imperalive and when no application under Rr. 89, 90 or 91 has been made, as in the present case, after sale, it is the duty of the Court to confirm it. Under this rule the act of confirmation of sale should follow automatically after sale has taken place where no such application as is referred to in R. 92 was made or when such application was made and disallowed.
15. Here is a case where the judgment-debtor not only did not raise any objection to the sale pursuant to the proclamation made or at any time until the sale was conducted; but he also failed to file any application for invalidating the sale under 0.21 Rr. 89,90 or 91 of the CPC. What the execution court did by passing the order that is challenged in C.R.P. No. 1068/96 was to refuse to interfere with the order passed by it confirming the sale. The review sought for by the judgment-debtor could have been effected only if there was some error apparent on the face of the record with regard to the order confirming sale. The provisions mentioned above and the position of law makes it clear that in the absence of any petition brought by the judgment-debtor under 0.21, R. 89 or R.90 or R.91, the Court had no other go but to confirm the sale. The dismissal of the review petition on 7.7.95 was therefore fully justified and in that perspective there is no error apparent on the face of the record in the order of this Court passed on 29.11-1996 either.
16. The review, in the circumstances, is found to be without merit and it is dismissed.
The learned counsel for the petitioner sought permission, at this stage, to move the execution court under S.47 of the CPC. It is not for this Court to give any direction in that regard. If any such application is made, that will be dealt with in accordance with law.