Allahabad High Court
Habib Sheikh Son Of Nathoo vs State Of U.P. Through Secretary, ... on 23 March, 2005
Equivalent citations: AIR2005ALL270, 2005(3)AWC2566, AIR 2005 ALLAHABAD 270, (2005) 99 REVDEC 76, (2005) 59 ALL LR 699, (2005) 3 ALL WC 2566
Author: Krishna Murari
Bench: Krishna Murari
JUDGMENT Krishna Murari, J.
1. Heard Sri Y.S. Saxena, learned counsel for the petitioner and Sri Vipin Sinha for the respondent No. 3.
2. Proceedings initiated by the respondent No. 3 bank for recovery of loan amount was challenged by the petitioner by filing a writ petition No. 30063 of 2004. The said writ petition was disposed of by this court vide order dated 2.8.2004 with the following directions;
i) Petitioner will deposit the entire amount so payable upto 31st July, 2004 within a period of one month from today in the respondent bank.
ii) After aforesaid deposit petitioner further undertakes to pay regular instalments as and when they become due in accordance with the bank schedule.
iii) In the event deposits are made in the manner as indicated above, respondents will not proceed to recover any amount from the petitioner by taking any coercive process.
iv) In the event the amount Is deposited as indicated above, respondent bank will not take any recovery charge.
v) Tractor of the petitioner, if under attachment shall be released on deposit of the defaulted amount if any, payable upto 31st July, 2004.
3. It has been stated in paragraph Nos. 4 and 5 of the writ petition that in pursuance of the aforesaid order the petitioner went to deposit the amount with Tehsil authorities but the same was not accepted and the tractor was auctioned on 18.12.2004. Thereafter, an application was moved in the earlier writ petition seeking a direction not to confirm the sale of the tractor and to accept the instalments. The fate of the said application has not been disclosed in the writ petition but learned counsel for the petitioner has orally informed that no order has been passed on the same. Although, the date of moving the application has not been disclosed but it has been stated in the writ petition that the sale was confirmed during the pendency of the said application.
4. Now, by means of the present writ petition which is virtually second writ petition, another attempt is being made by the petitioner to thwart the recovery proceedings. The relief claimed in the present writ petition is a writ of mandamus to command the respondent No. 2 State of U.P. through Collector Pilibhit to compensate the petitioner for an amount of Rs. 2,50,000/ or to release the tractor in his favour.
5. The first contention advanced by the learned counsel for the petitioner is that it is only District Magistrate who enjoys the power under the U.P.Z.A.& L.R. Rules to confirm the auction sale and the order passed by Tehsildar confirming the auction sale is without jurisdiction.
6. Rule 282 U.P.Z.A.& L.R. Act provides for attachment and sale of movable property. The said Section reads as under;
282.Attachment and sale of moveable property (1) The Collector may, whether the defaulter has been arrested or not, attach and sell his moveable property.
(2) Every attachment and sale under this section shall be made according to the law in force for the time being for the attachment and sale of moveable property in execution of a decree of a civil court.
(3) In addition to the particulars mentioned in Clauses (a) to (o) of the proviso to Sub-section (1) of Section 60 of the Code of Civil procedure, 1908 ( V of 1908), articles set apart exclusively for the use of religious worship shall be exempted from attachment and sale under this section.
Thus the procedure to be followed for attachment and sale of movable property in pursuance of recovery proceedings under U.P.Z.A.& L.R. Act are the same as attachment and the sale of movable property in execution of decree of civil court under the provision of Civil Procedure Code. Order 21 Rule 74 to Rule 81 of Code of Civil Procedure deals with the sale of movable property. Order 21 Rule 77 relevant for the purpose reads as under;
77- Sale by public auction-
1) Where movable property is sold by public auction the price of each lot shall be paid at the time of sale or as. soon after as the officer or other person holding the sale directs, and in default of payment the property shall forthwith be re-sold.
2) On payment of the purchase-money, the officer or other person holding the sale shall grant a receipt for the same, and the sale shall become absolute.
3) ..............................
7. In view of the above provisions in case of auction of movable property on payment of purchase money by the auction purchaser the person holding the sale is required to issue a receipt for the same and thereafter the sale becomes absolute.
8. According to allegation made in the writ petition auction sale of tractor took place on 18.12.2004 for a sum of Rs. 88,000/. In the absence of any pleading that auction purchaser did not deposit the sale amount it shall be presumed that amount was d posited by the auction purchaser and the sale became absolute. In view of the provision of order 21 Rule 77 the auction sale does not require any confirmation as is required in the case of immovable property and the sale of moveable property became absolute on payment of the purchase money by the auction purchaser.
9. In view of the above provisions the argument advanced by the learned counsel for the petitioner that Tehsildar has no jurisdiction to confirm the sale and same ought to have been done by the Collector is not liable to be accepted.
10. The next submission of the learned counsel for the petitioner challenging the validity of the auction sales is based on the provision of the orders 21 Rule 84. It has been urged by the learned counsel for the petitioner that since property (the tractor) which was auctioned was valued of Rs. 2,50,000/ which was less than total amount sought to be recovered hence the sale was hit by Rule 64 of Order 21. Order 21 Rule 64 provides as follows;
64. Power to order property attached to be sold and proceeds to be paid to person entitled-
Any court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof shall be paid to the party entitled under the decree to receive the same.
11. Placing reliance upon the aforesaid provision if has been urged by the learned counsel for the petitioner that unless the valuation of the property is sufficient to Satisfy the decree no sale can be made.
12. The argument has only been advanced to be rejected. A bare reading of Order 21 Rule 64 goes to show that in case if the decree can be satisfied by sale of a part or portion of the attached property then only such part or portion shall be sold meaning thereby that it a not necessary to sell the entire attached property if the decree can be satisfied by sale of a part or portion of it and not vice versa as suggested by the learned counsel for the petitioner. In case the arguments advanced by the learned counsel for the petitioner is accepted then in every case where the valuation of the property attached is less than amount sought to be recovered no sale can take place. It cannot be the intention of legislature while enacting Order 21 Rule 64 nor the same is borne out from a plain reading of the said provision.
13. Once sale has become absolute a vested right stands created in favour of auction purchaser and the relief claimed by the petitioner for release of tractor or payment of compensation cannot be allowed. Further Rule 78 of Order 21 of the Code of civil Procedure provides that no irregularity in publishing or conducting the sale of movable property shall vitiate the same, however, it is open to the person sustaining injury by reason of any such irregularity to file a suit for compensation or recovery of the property.
14. In view of above discussions, this writ petition is devoid of any merits and stands dismissed.