Dilip Madanlal Agarwal vs Bharatbhai Chandraprasad on 3 October, 2013

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Gujarat High Court

Dilip Madanlal Agarwal vs Bharatbhai Chandraprasad on 3 October, 2013

Mr. D.P.Kinariwala, learned advocate for Ms.Dhruma U.Vyas, learned advocate, waives service of notice of Rule for respondent No.1. Respondent No.2 is the Registrar of the City Civil Court, therefore, no notice is required to be issued to the said respondent. With the consent of learned counsel for the respective parties and looking to the nature of the issue involved, the petition is being heard and finally decided.

2. This petition under Article 226 of the Constitution of India has been filed, inter alia, with a prayer to quash and set aside the order dated 31-08-2013, passed by the learned Judge, Court No.8, City Civil Court, Ahmedabad, below Exh.83, in Execution Petition No. 519 of 2001, whereby,the said application filed by respondent No.1-third party bidder under Order 21 Rule 95 of the Code of Civil Procedure, 1908 ( the Code for short), has been allowed and a Court Commissioner has been appointed to hand over the peaceful physical possession of the-suit property to respondent No.1.

3. The background facts, as emerging from the record produced by learned counsel for the parties and the chronology of events, would have some bearing on the decision of the case, and are encapsulated herein-below:

3.1 Bhagyoday Co-operative Bank Ltd., filed Lavad Case No.1301 of 2000 before the Board of Nominees, Ahmedabad, against the petitioner. A decree was passed in favour of the Bank. Execution Petition No.519 of 2001 was preferred for the recovery of decretal dues. The property in question, a residential Flat bearing No.4/B, Tirthnagar Apartments, Brahmkshartiya Co-operative Housing Society Ltd., Chhadavad, Ahmedabad, admeasuring 175 sq. yards, situated in T.P.Scheme No.7275, belonging to the petitioner-judgment-debtor came to be auctioned. Respondent No.1 was the successful bidder who purchased the said property in the auction. The sale was made absolute in the year 2005 and Respondent No.1 deposited an amount of Rs.10,75,000/-

lakhs with the Court below. On 10.05.2006, respondent No.1, made an application at Exh.83, under Order 21 Rule 95 of the Code, seeking possession of the auctioned property. On the same day, respondent No.1 made another application at Exh.85, under Order 21 Rule 94 of the Code, for execution of the Sale Deed in respect of the auctioned property. Vide a common order dated 13.08.2008, passed below the applications at Exh.83 and 85, the City Civil Court allowed the application at Exh.85 and directed that a Sale Certificate be issued in favour of respondent No.1. The application at Exh.83, however, was rejected as premature. It was held by the City Civil Court that respondent No.1 could prefer an application for possession of the suit property after the issuance of the Sale Certificate under Order 21 Rule 94 of the Code. Thereafter, on 24.04.2009, respondent No.1, filed an application under Order 21 Rule 95 in Execution Petition No.519 of 2001, for physical possession of the property purchased by him in the auction proceedings. It was contended by respondent No.1 in the said application that on 10.05.2006 he had moved an application at Exh.83 that was rejected as being premature at the relevant point of time by the common order passed below Exhs.83 and 85 on 13.08.2008, reserving liberty to file an application for possession after the issuance of the Sale Certificate. That now, the Sale Deed has been executed by the Court in favour of respondent No.1 on 12.01.2009, therefore, physical possession of the property may be handed over to him. By an order dated 19.02.2009, passed below Exh.139, the learned Judge, City Civil Court No.9, Ahmedabad, directed that the order dated 10.05.2006, passed below Exh.83, be recalled and the said application be reheard. The reason for recalling the order below Exh.83 was that the learned advocate for the petitioner had misled the Court on a proposition of law. In order to ensure that no party is prejudiced by an act of the Court and following the principles of law enunciated by the Supreme Court in AIR 1966 SC 1631 Jay Singh Vs. Brij Lal, and the maxim Actus curiae neminem gravabit , the City Civil Court directed the rehearing of the application at Exh.83. The above order dated 19.02.2009, passed below Exh.139, was challenged by the petitioner before this Court by filing a petition, being Special Civil Application No.3574 of 2012. By an order dated 03.04.2012, this Court (Coram: Sonia Gokani, J.) dismissed the petition. The petitioner filed an application for review of the above order, being Misc. Civil Application No.1785 of 2012. By an order dated 11.01.2013, the said review application came to be rejected. The petitioner then challenged both the above-mentioned orders of this Court by filing Letters Patent Appeal No.71 of 2013, which was dismissed by an order dated 24.06.2013. In the above background, the application at Exh.83 was reheard and came to be allowed by the impugned order dated 31.08.2013. Aggrieved thereby, the petitioner has preferred the present petition.

4. It may be noted that though the petition has been filed invoking Article 226 of the Constitution only, however, it has been pleaded therin that the City Civil Court has exercised its jurisdiction illegally, resulting in a failure of justice. In essence, the supervisory jurisdiction of this Court has also been invoked.

5. Learned Counsel for the respective parties have made detailed and elaborate submissions in support of their respective stands.

6. Mr. B.R.Gupta, learned advocate for the petitioner has submitted that the application at Exh.83 was made by respondent No.1 on 10.05.2006, purportedly under Order 21 Rule 95, with a prayer to hand over the physical possession of the property to him. At that point of time, no Sale Certificate under Order 21 Rule 94 had been granted to him. It is submitted that the issuance of a Sale Certificate is a pre-requisite before delivery of the property can be ordered to be made in favour of the purchaser under Order 21 Rule 95. When no Sale Certificate had been given to respondent No.1 on the date of making the application, the delivery of the property cannot be given to the purchaser. It is contended that the language of Rule 95 of Order 21 is mandatory in this regard and envisages the existence of a Sale Certificate under Rule 94, before any order handing over the possession of the property is made by the Court. Admittedly, the Sale Certificate under Rule 94 had not been issued on 10.05.2006, when the application was made but came to be issued subsequently, on 12.01.2009.

6.1 It is next contended that no prayer had been made by respondent No.1 in Exh.139 for the recall of the order dated 13-8-2008 passed below Exh.83 and the said order had become absolute. While rehearing Exh.83, the City Civil Court could not have taken into consideration subsequent developments that took place after the filing of the application. It ought to have been kept in mind by the Court below that at the time when the application was filed, no Sale Certificate under Order 21 Rule 94 had been issued to respondent No.1, therefore, no order directing that the physical possession of the property be handed over to respondent No.1 could have been made.

6.2 It is further submitted that Insolvency Petition No.25 of 2003 filed by the petitioner is pending. The City Civil Court ought not to have directed that the property be handed over to respondent No.1 as the High Court has passed an order in Special Civil Application No.6930 of 2005 holding that the sale consideration deposited by the third party bidder shall be subject to the order that may be passed by the Insolvency Court in Insolvency Petition No.25/2003.

6.3 Lastly, it is submitted that while passing the impugned order, the City Civil Court has exercised its jurisdiction illegally and with material irregularity, contrary to the statutory provisions and requirements of Order 21, Rules 94 and 95 of the Code and Rules 404 and 409 of the Ahmedabad City Civil Court Rules, 1961, and the Provincial Insolvency Act, 1920.

6.4 In support of the above submissions, learned counsel for the petitioner has placed reliance upon the following judgments:

(1) Pattan Sardar Khan v. Pattan Rasoolkhan 1993 Law Suit (AP) 373 (2) P. Kuppan v. Jayarama Chetty 1995 Law Suit (Mad) 415 (3) Nellikottu Kolleriyil Madhavi v. Kavakkalathil Kalikutty 1996 Law Suit (SC) 1987

7. The petition has been strongly opposed by Mr.D.P.Kinariwala, learned counsel for respondent No.1 third party bidder.

7.1 It is submitted that the petition has been filed just to deprive respondent No.1 of the suit property that has been purchased by him in the auction and for which the entire sale consideration has been deposited and the Sale Deed executed. That the sale was made absolute in the year 2005 and Rs.10,75,000/- has been deposited by respondent No.1 in the Court below. It is contended that though, by common order dated 13.08.2008, the Ex.83 was rejected as being premature, however, liberty was reserved to move an application under Order 21, Rule 95 after the issuance of the Sale Certificate. The Sale Certificate was issued on 12-1-2009 and the Sale Deed was executed in favour of respondent No.1, on 12.01.2009. Thereafter, respondent No.1 filed the application at Ex.139 for handing over the possession of the property to him.

7.2 It is contended on behalf of respondent No.1 that when the order dated 19.02.2009, was passed below Ex.139 whereby the application at Ex.83 was directed to be re-heard, the sale Deed had already been executed in favour of respondent No.1, as noted in the said order. The order below Ex.139 has attained finality as the challenge to the said order by the petitioner by filing a petition before this Court has failed. The review application has also been rejected, and the challenge to both the orders of the learned Single Judge has been rejected by the Division Bench. It is not open to the petitioner to re-agitate the issue regarding the rehearing of Ex.83 at this stage.

7.3 It is further submitted that the submission that the Sale Certificate has not been issued as per Rule 404 of the Ahmedabad City Civil Court Rules is untenable as the petitioner has not challenged the validity of the Sale Certificate at any stage. Such contentions are being raised by the petitioner only to delay the matter. It is only because of the litigation initiated by the petitioner that respondent No.1 is being deprived of the possession of the suit property for eight years, in spite of having paid the full consideration.

7.4 It is submitted that the Sale Certificate is only the evidence of the title of the Purchaser. The title of the Court auction purchaser becomes complete on the confirmation of the sale under Order 21 Rule

92. In the present case, the Sale Certificate has already been issued and the Sale Deed was executed before the passing of the impugned order directing that the physical possession of the suit property be handed over to respondent No.1. Just because the application at Ex.83 was filed on 10.05.2006, the subsequent events, such as the passing of the order below Ex.139 that has been upheld by this Court, cannot be ignored. What is important is the fact that not only has the Sale Certificate been issued but the Sale Deed has also been executed in favour of respondent No.1 before the passing of the impugned order. The requirements of the provisions of Order 21, Rules 94 and 95 are, therefore complete.

7.5 It is urged on behalf of respondent No.1 that the impugned order is perfectly legal and valid and does not suffer from any illegality or irregularity. That the petitioner is constantly challenging each and every order with the sole aim of delaying the handing over of the property to which respondent No.1 has legally acquired title. It is prayed that the interest of justice demands that the petition be rejected.

7.6 In support of the above submissions, reliance has been placed by the learned counsel for respondent No.1 upon the following judgments.

1) Ratan Bapu Patil (Dead) by Lr s. v. Dodhu, AIR 2005 SC 1500

2) Maya Devi (deceased by LRs) v. Smt. Raj Kumari Batra (deceased by LRs), 2011 AIR SCW 24

8. This Court has heard learned counsel for the respective parties at length and considered the submissions advanced at the Bar.

9. It is an undisputed position that when the application at Ex.83 was made on 10.05.2006, the Sale Certificate had not been issued to respondent No.1 in respect of the auctioned property. The prayer in the said application was for handing over the physical possession of the said property to respondent No.1. The application at Ex.83 was rejected as being premature, by a common order passed below Exhibits 83 and 85, dated 13.08.2008. However, liberty was reserved to respondent No.1 to move an application under Order 21, Rule 95 after the issuance of the Sale Certificate. By the same order, Ex.85 was allowed and a Sale Certificate was directed to be issued to respondent No.1.

10. It is an admitted fact that respondent No.1 is the successful bidder in the auction. The entire sale consideration of Rs.10,75,000/- (Rupees Ten Lakhs Seventy Five Thousand Only) has been deposited by him and the sale has been confirmed by the Court on 23.09.2005. The Sale Certificate has been issued and the Sale Deed has been executed in favour of respondent No.1 on 12.01.2009. This was the position when respondent No.1 filed the application at Ex.139 for the grant of the physical possession of the property purchased by him. It may be recalled that while rejecting Ex.83 as being premature, the Court had permitted him to file another application after the issuance of the Sale Certificate. By the order dated 19.02.2009, passed below Ex.139, the City Civil Court directed that the application at Ex.83 be reheard, after recalling its earlier order passed below it. As already noted hereinabove, the reason for the recall of the said order and rehearing of the application was that the Court below found that the learned advocate for the petitioner had misled the Court on a proposition of law and to ensure that no litigant should suffer because of a mistake of the Court. The order below Ex.139 was challenged in a writ petition filed by the petitioner which was rejected. The review application against the order of rejection of the petition stood dismissed. The Letters Patent Appeal filed by the petitioner against the above orders of the learned Single Judge was also dismissed. The challenge of the petitioner to the order below Ex.139 has failed upto the Division Bench of this Court. In the view of this Court, it does not lie in the mouth of the petitioner to say that the application at Ex.83 could not have been reheard.

11. The submission of the learned advocate for the petitioner that on 10.05.2006, the initial date of filing of the application at Ex.83, no Sale Certificate had been issued and the subsequent events ought not to be taken into consideration as it is mandatory to have a Sale Certificate before possession can be handed over, is fallacious and untenable. It cannot be ignored that while rejecting the application at Ex.83 as being premature the Court had permitted respondent No.1 to make another application under Order 21, Rule 95 after the issuance of the Sale Certificate and such an application was made at Ex.139. It cannot be overlooked that by the order passed below Ex.139 the earlier order below Ex.83 was recalled and the said application was directed to be reheard. Further, it cannot be lost sight of that the challenge of the petitioner to the order below Ex.139 has failed upto the Division Bench of this Court. The application at Ex.83 was, therefore, reheard and the impugned order has been passed after hearing the parties and considering the aspect that the Sale Deed has been executed in favour of respondent No.1 on 12.01.2009. The submission made by the learned counsel for the petitioner that all these subsequent events that have been evidenced by orders of the City Civil Court, this Court and the Division Bench should not be taken into consideration is unrealistic and implausible, therefore, unworthy of acceptance.

12. It may also be noted that at the time of passing of the impugned order dated 31.08.2013, the Sale Deed had already been executed in favour of respondent No.1. The submission of the learned counsel for the petitioner that the issuance of a Sale Certificate under Order 21, Rule 94 is a mandatory requirement before delivery of the property under Order 21, Rule 95, even if taken at its face value, does not survive. However, this proposition would require detailed discussion in view of the judicial pronouncements relied upon by learned counsel for the respective parties.

13. It may be pertinent to consider the legal position at this stage.

Order 21, Rules 94 and 95 of the Code are reproduced hereinbelow:

94.

Certificate to purchaser.- Where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall bear date,the day on which the sale became absolute.

95. Delivery of property in occupancy of judgment-debtor.- Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refused to vacate the same.

14. On behalf of the petitioner, reliance has been placed upon a judgment of the High Court of Andhra Pradesh in Pattan Sardar Khan v. Pattan Rasoolkhan (Supra), wherein, it has been held that:

(15)

In view of what is stated supra, I hold that the provisions of Order 21 Rule 95 CPC are applicable for all Court sales regardless of the nature of the suit and that Article 134 of Limitation Act,1963 is applicable for application for delivery of possession under Order 21 Rule 95.Even though the sale becomes absolute on confirmation under Order 21 Rule 92 CPC,the said confirmation has to be evidenced by a sale-certificate which has got to be issued under Order 21 Rule 94 and it is only after sale-certificate is issued, the limitation runs for filing an application under Order 21 Rule 95 CPC vis-a-vis Article 134 of Indian Limitation Act, 1963. The words under Article 134 of Indian Limitation Act, 1963 corresponding to Article 180 of Indian Limitation Act,1908, to the effect when the sale becomes absolute have to be read down in the context of application under Order 21 Rule 95 CPC as when the sale-certificate is issued .

The words under Order 21 Rule 95 CPC .. and a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order delivery to be made.... are also very significant as the application under Order 21 Rule 95 CPC can be filed only after the sale-certificate is issued under Order 21 Rule 94 CPC and as such, no contention can be countenanced that the limitation will run from the date when the sale is confirmed.

15. In P.Kuppan v. Jayarama Chetty (Supra), the High Court of Madras has held:

(4)

I am unable to see from the records that though the Court had ordered for the issue of sale certificate on 1-10-91 itself, actually the sale certificate was issued only on 22-2-93. Order 21, Rule 94 Code of Civil Procedure prescribes no time limit for the issue of the sale certificate to the purchaser. Anyhow, in this case, as seen from the records, the sale certificate was issued only on 22-2-93 and the Court auction-purchaser is entitled to take delivery of the property purchased by him, on the strength of the certificate for the sale of the property to him. Rule 95 in Order 21 of Civil Procedure reads as follows:

95.Delivery of property in occupancy of judgment-debtor.- Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order to delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person, who refused to vacate the same.

From the wording in the Rule 95 that, a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order delivery to be made... indicates that only after the issue of the sale certificate, the court auction-purchaser is entitled to ask for delivery. As mentioned above,when the sale certificate was issued only on 22-2-93, the purchaser could move the court for taking delivery only after this date. Even though Article 134 of the limitation Act fixes the period as one year from the date when the sale becomes absolute, under Order 21,Rule 95, the sale becomes absolute only after the issue of the sale certificate. For the reason that the Court ordered for the issue of sale certificate on 1-10-91, it cannot be stated that the sale became absolute on that day itself. Therefore,Article 134 of the Act is subject to Order 21, Rule 95 Code of Civil Procedure.

16. In Nellikottu Kolleriyil Madhavi v. Kavakkalathil Kalikutty (Supra), the High Court of Kerala has held as follows:

(3)

This appeal by special leave arises from the judgment and decree of the Kerala High Court dated 24/5/1993, made in SA No.368 of 1989. The respondents had purchased the Plaint Schedule property in execution of the decrees in OS No.262 of 1955 on the file of the court of the District Munsif, Parappanangadi. The sale certificate, Exh.A-2 dated 28/1/1958 was given to the respondents. They had also filed an application for delivery of possession of the property which had come to be delivered under Exh.A-3 dated 21/7/1961.After taking delivery of the possession on 20/10/1961, they assigned the Plaint Schedule property to the plaintiff. Under those circumstances, the question arises whether they are entitled to a decree of perpetual injunction restraining the appellant from interfering with his possession. Though the trial court and the appellate court had accepted the case of the appellant, the High Court has pointed out that aforesaid documents are material for deciding the controversy and the courts below had not considered those documents in proper perspective. Accordingly, in second appeal, the High Court has gone into that question. It is settled law that the person who purchases the property in a court auction-sale, gets title to the property by sale certificate issued by the court as true owner and after confirmation of the sale, he gets possession thereof.

17. On the other hand, learned counsel for respondent No.1 has relied upon a judgment of the Supreme Court in Ratan Bapu Patil (Dead) by LR s. v. Dodhu (Supra), wherein the Supreme Court has held as below:

6.

We have gone through the judgment rendered in Pattam Khader Khan (supra). It has been held in the aforesaid Judgment that title of the Court action-purchaser becomes complete on the confirmation of the seal under Or.21, R.92 and by virtue of the thrust of Sec.65, CPC the property vests in the purchaser from the date of the sale Issuance of sale certificate is only the evidence of the title which can always be supplied later on to satisfy the requirements of Or.21, R.95. The limitation starts running under Art.134 of the Limitation Act from the date of confirmation of the sale deed. The point involved in the present case is squarely covered by the rule laid down by this court in Pattam Khader Khan (supra). In the present case the sale was confirmed on 17.4.1968 and the limitation of one year provided under Art.134 would start running from the said date. The present application having been filed in the year 1985 was clearly barred by time.

18. In Maya Devi (deceased by LRs) v. Smt. Raj Kumari Batra (deceased by LRs) (Supra), relied upon on behalf of respondent No.1 the Supreme Court held:

8.*** *** **** **** The dismissal of the Letters Patent Appeal and the special leave petition against the said order by this Court has placed all these aspects beyond the pale of any further challenge or controversy. It follows that all contentions relating to the validity of the confirmation of sale in favour of the decree-holder and the issue of a sale certificate in her favour which stand finally determined against the appellants in terms of the judgments and orders of the Executing Court and the High Court in the first round, stand concluded and cannot be re-agitated. Reliance upon the decision of this Court cited by Mr.Kapoor, is therefore, of no assistance to him.

19. As held by the Supreme Court in the case of Ratan Bapu Patil (Dead) by Lr s. v. Dodhu (Supra), the property vests in the purchaser from the date of the sale. The issuance of the Sale Certificate is only the evidence of the title which can always be supplied later on to satisfy the requirements of Order 21, Rule 95. This being the correct and binding legal position, enunciated by the Supreme Court; this Court does not consider it necessary to discuss the views expressed by the High Courts of Andhra Pradesh, Madras and Kerala, in the judgments cited on behalf of the petitioner.

20. The facts of the case, even otherwise, reveal that before the City Civil Court passed the impugned order dated 31.08.2013 directing that the property be handed over to respondent No.1, Sale Certificate had been issued and the Sale Deed had already been executed by the Court, therefore, the requirements of Order 21, Rule 95, have been fulfilled.

21. The petitioner has not challenged the validity of the Sale Certificate, therefore, the submission that it has not been issued in accordance with Rule 404 of the Ahmedabad City Civil Court Rules is stated to be rejected.

22. Insofar as the contention regarding the pendency of the Insolvency Petition is concerned, the City Civil Court has observed in the impugned order that the order passed by this Court in Special Civil Application No.6930 of 2005, holding that the sale consideration deposited by the third party bidder (respondent No.1) shall be subject to the order made by the Insolvency Court cannot be construed in a manner that warrants a stay of the request for delivery of the auction property. Before this Court, only bare submissions have been made but no order of this Court has been produced by the petitioner. There is no reason to doubt the reasons advanced by the City Civil Court in this regard.

23. Considering the entirety of the factual and legal position, it transpires that the re-hearing of the application at Ex.83 by the order below Ex.139 has been confirmed upto the Division Bench of this Court. At the time of passing of the impugned order after rehearing Ex.83, the Sale Certificate had been issued and the Sale Deed executed in favour of respondent No.1. In the considered view of this Court, the requirements of Order 21, Rules 94 and 95 of the Code stood fulfilled.

24. The impugned order does not suffer from the vices of illegality, perversity, or irregularity. On the contrary, it is balanced and well-reasoned, having been passed after considering the entire factual and legal position. The intention of the petitioner appears to be to delay the handing over of the possession of the property purchased in auction by respondent No.1 even though the sale consideration has been fully paid, the sale confirmed in the year 2005, and the Sale Deed executed in favour of respondent No.1 on 12-1-2009. Under the circumstances, this Court does not consider it a worthy case for exercise of its supervisory jurisdiction.

25. The petition fails and is rejected. Rule is discharged.

arg						   (SMT.
ABHILASHA KUMARI, J.) 

 


	 


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