Madras High Court
Annamalai vs Nagoorgani And R. Basha on 1 November, 2006
Equivalent citations: (2007)1MLJ778
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. The short and important question arises in this Revision Petition viz., Whether the time stipulated under Order XXI Rule 85 C.P.C. could be extended by the Court?
2. This Revision Petition is directed against the Order of the Subordinate Judge, Cheyyar, Tiruvannamalai District in E.A. No. 178 of 2003 in E.P.No. 18 of 2002 in O.S.No. 146 of 1999, dated 27.1.2004 declining to extend the time stipulated under Order XXI Rule 84,85 C.P.C. Auction Purchaser is the Revision Petitioner.
3. Brief facts are as follows:
E.P.No. 18 of 2002 was filed by the Decree Holder to execute the money decree in O.S.No. 146 of 1999. In the Execution Proceedings, the immovable property was brought for sale. In the auction held on 3.11.2003, the Revision Petitioner became a successful bidder for a sum of Rs. 2,01,000/-. He paid a sum of Rs. 50,250/- towards 1/4th sale amount as contemplated under Order XXI Rule 84 C.P.C. Balance 3/4th amount of Rs. 1,54,810/- has to be paid within a period of two weeks on or before 17.11.2003. But the Revision Petitioner has not paid the amount. He filed E.A. No. 173 of 2003 seeking for extension of 10 days time for payment of balance amount of Rs. 1,54,810/-.
4. The Respondent - Judgment Debtor resisted the Application contending that as contemplated under the Code, the Auction Purchaser ought to have deposited 3/4th amount on or before 17.11.2003 and that the Court cannot extend the time under Section 148 r/w 151 C.P.C.
5. In consideration of the submissions of both sides, the learned Subordinate Judge dismissed the Petition holding that the time stipulated under Order XXI Rule 84 C.P.C. is mandatory and that there are no valid grounds to extend the mandatory time stipulated under the Code.
6. Assailing the impugned Order, the learned Counsel for the Revision Petitioner contended that the Executing Court ought to have extended the time for payment of balance purchase money. It was further contended that the Executing Court erred in observing that the Court has no power to extend the time for payment of purchase money. In support of his contention, the learned Counsel for the Revision Petitioner placed reliance upon the decisions reported in A.I.R. 1990 Madras 232 and A.I.R. 1983 S.C. 428.
7. Learned Counsel for the Respondents contended that 15 days time stipulated under Order XXI Rule 85 is mandatory and the mandatory time stipulated under the Statute cannot be extended by the Court. In support of his contention, the learned Counsel for the Respondents/Judgment Debtors placed reliance upon number of decisions:
8. It is to be pointed out that Order XXI Rules 84, 85 and 86 are mandatory. If there is no compliance of these mandatory provisions, there would be no sale at all and the Court is bound to Order resale. As per Order XXI Rule 84, on every sale of immovable property, the auction purchaser shall immediately pay twenty five percent of the amount of his purchase money and in default of such deposit, the property shall forthwith be resold. The requirement that 25% of purchase money should be deposited before the Court immediately is mandatory.
9. As per Order XXI Rule 85, the full amount of purchase money shall be paid by the auction purchaser into Court before the Court closes on the 15th day from the sale of the property. In case of default to pay the amount, time cannot be extended either under Section 148 C.P.C. or invoking the inherent power of the Court under Section 151 C.P.C.
10. Contending that the Court has jurisdiction to extend the time to pay the purchase money under Section 148 C.P.C., the learned Counsel for the Revision Petitioner relied upon the decision reported in Ashok Kumar Kedia v. Balaji Builders and Anr. . The said case arose out of the Suit on the Original Side of the High Court. In A. No. 5578 of 1988 in C.S.No. 34 of 1983, the highest offer made by the Appellant at Rs. 23,00,000/- was accepted and the court has directed to deposit the amount with the Plaintiff Bank on or before 10.3.1989 and that the Plaintiff could appropriate Rs. 15,00,000/- as per Order dated 26.7.1988. The remuneration of the auctioneer was fixed by the Court at Rs. 50,000/-. Thereafter, the Appellant filed A.No. 1385 of 1989 seeking extension of time till 5.4.1989 for paying the balance amount stating therein the reasons which are necessitated the request for extension of time which was rejected by the cryptic order. As against that Order, O.S.A.No. 87 of 1989 was filed and taking note of the fact that the amount was deposited and that, only the Court had fixed the date for payment of the amount, the Division Bench has ordered extension of time. In that context, in the subsequent proceedings, in the said decision, the Court has observed that ". it was the Court, who fixed the date and the Court has the jurisdiction to extend the time". This Court has held as under:
In an auction sale of immovable property the highest offer was accepted and the bidder was directed to deposit the amount with the Plaintiff bank on or before certain date. The highest offer was accepted by agreement arrived at between the parties. The highest bidder filed an application for extension of time for deposit of purchase money. The application for extension of time was rejected.
Held that, rejection of application was unjustified. It could not be said that it was on the specific understanding that the amount be deposited by certain date a consent having been given, thereafter the highest bidder could not ask either for extension in absence of parties or rely upon the said order to deposit the amount later on. It is seen from the order that it was the Court which fixed the date for depositing the amount, and the consent of parties was confined only to the price for which the property could be sold. Therefore, if acceptable reasons exist, the Court has the jurisdiction to extend the time and need not look to the consent of parties. Even in a case where any compromise is arrived at between the parties, still the Court has the jurisdiction to extend time.
11. In the said case, it was the Court, who fixed the date for payment of the amount and in that context, the Court granted time for extension of time. In the case on hand, it was the Court auction sale as governed by the mandatory provisions of the code.
12. In Smt. Periyakkal and Ors. v. Smt. Dakshyani , the Supreme Court held that the Court as the jurisdiction under Section 148 C.P.C. to grant extension of time provided, valid grounds are made out. In the said case, the parties have arrived at compromise. In that context, while dealing with the power, it was held as under:
Regarding the time within which the amount has to be deposited, it was the Court who fixed the date and it was not one arrived at by consent of parties. Even so, the Court has the jurisdiction under Section 148 C.P.C. to grant extension of time, provided valid grounds are made out.
The said case is of no avail to the Petitioner .
13. When the amount is not deposited, within the time stipulated under Order XXI Rule 85, the Court is bound to resell the property under Rule 86 and has no discretion to extend the time for payment. Order XXI Rule 86 provides for resale in case of default of payment within the prescribed period. Order XXI Rule 86 reads as under:
Procedure in default of payment :- In default of payment within the period mentioned in the last preceding rule, the deposit may, if the court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.
14. It is thus clear that the provisions are mandatory being saddled with the specified time for payment and penalties in case of failure to deposit the purchase money. If the Court extends the time, the mandatory provisions of Order XXI Rules 84, 85 and 86 would be circumvented by resorting to Section 148A of CPC.
15. Let us consider now Section 148 of C.P.C. itself. Section 148 of the Code provides for enlargement of time by the Court. As per Section 148, where any period is fixed or granted by the Court for doing any act prescribed or allowed by the code, the Court may in its discretion from time to time enlarge such period even though, the period originally fixed or granted may have expired.
16. Time stipulated under Section 148 C.P.C. has been amended by the C.P.C. Amendment Act 46/1999 (w.e.f. 1.7.2002) by inserting the words " not exceeding 30 days in total". Under Section 148, the Court can enlarge the time for doing any act fixed or granted by the Court for any act fixed or allowed by the Code. Time stipulated for payment of purchase money within a period of two weeks is the mandatory provision stipulated under Order XXI Rule 89 C.P.C. Such time is not fixed by the Court; but period fixed by the Code. In such cases, under Section 148 of C.P.C. the Court has no power to extend the time fixed by the law or Statute.
17. In Thayyan Padayachi and Anr. v. Veluswami and Anr. , it was held as follows:
(2) It seems to me that Order 21, Rule 86 is quite clear on the point. It states that in default of payment within the period mentioned in Order 21, Rule 85, the Court may, if it thinks fit, forfeit the deposit less the expenses of sale, to the Government, and the rule proceeds to lay down that the property shall thereafter be re-sold and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.
This rule does not authorise the Court to grant any extension of time for the payment of the balance of the purchase price. The only discretion that is available to the Court under this rule relates to the extent to which it is called upon to deal with the 25 per cent of the purchase price which had been deposited under Rule 84. Insofar as that is concerned, the court may order its forfeiture after deducting the expenses of the sale.
If it does not do so, obviously that amount would normally be held to the credit of the auction purchaser to be returned to him. But the court is not competent to extend the time for payment of the balance of the amount for which time has been fixed by Rule 85. There is ample authority for this position in Monni Aidruz v. Mira Mohideen AIR 1939 Madras 57, in which an earlier decision of the Allahabad High Court in Nawal Kishore v. Buttumal AIR 1935 All 243 has been relied upon and approved.
(3) On behalf of the respondents Section 148 of the Civil Procedure Code has been sought to be invoked in support of the lawful exercise of the powers of the learned Subordinate Judge in granting extension of time. The section in terms does not apply. It relates to a case where a period is fixed or granted by the Court, in its discretion for the doing of an act which is prescribed or allowed by the Code. In such an event, the court's discretion in enlarging the period is not fixed or granted by the court but is fixed by the Code itself. It makes a fundamental difference to the application of Section 148. This provision of law will not apply to the present case.
In Subbammal v. P. Gurusamy Thevar and Ors. , it was held as follows:
There is no dispute that Section 148 CPC has no application here. That section says that where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by the Code, the court may, in its discretion, from time to time enlarge such period. In the present case, there is no question of any period having been fixed or granted by the Court for the doing of a particular act. It is the statutory provision contained in Rule 85 of Order 21 which makes it obligatory on the part of the auction purchaser to deposit not only the full amount of purchase money but also the general stamps within the prescribed period, namely, 15 days from the date of sale. There is no provision in the Code which authorises the executing court to extend the abovesaid period of 15 days. On the contrary, Rule 86 makes it clear that if there was default in payment within the period prescribed in Rule 85, the property shall be resold and the purchaser shall forfeit all claims to the property. Undoubtedly Rules 85 and 86, the executing Court is given discretion but that discretion relates only to the question whether the deposit already made (under Rule 84) has to be forfeited or not.
Similar view was taken in 2001, (2) M.L.J. 175 and A.I.R. 1962 A.P. 271.
18. Learned Counsel for the Petitioner has contended that while considering the word 'shall' as to ascertain the intendment of the legislature and the consequences flowing from the construction of the word 'shall' and Submitted that the time stipulated under Order XXI Rule 85 and the word used 'shall' is only directory. He also placed reliance upon the decision reported in 1985, (3) S.C.C. 53. The said case arose out of Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. Section 11A of that Act provided for striking out defence on failure to deposit the arrears within 15 days of the date of Courts Order. Since the Rent Control Act was beneficial legislation for the protection of the Tenant, the Supreme Court has observed that the word 'shall' is only a directory and it should not be a bar to the Courts power to grant relief in the interest of justice. In that context, the Supreme Court has observed as follows:- " Where the Court fixes a time to do a thing, the Court always retains the power to extend the time for doing so. The principle of Section 148 CPC must govern in not whittling down the discretion conferred on the Court. " That decision is not applicable to the case on hand. If the legislature intended to confer power upon the Court to extend the time for payment of purchase money, there would not have been necessity to incorporate the provision of Order XXI Rule 86 stipulating resale.
19. Since the Petitioner has not deposited the balance amount within the stipulated time, the Executing Court has rightly dismissed the Petition for extension of time. If any payment is made within the date, under Order XXI Rule 86, the Court has discretion to forfeit the deposit. Since under Order XXI Rule 81, the Court has the discretion, it is for the Executing Court to pass appropriate Orders if any application is filed by the Revision Petitioner/Auction Purchaser to refund the amount after defraying the expenses of the sale.
20. In the result, the Order of the learned Subordinate Judge, Cheyyar, in E.A. No. 178 of 2003 in E.P. No. 18 of 2002 in O.S.No. 146 of 1999, dated 27.1.2004 is confirmed and the Revision Petition is dismissed with the following directions:
(i) It is open to the Revision Petitioner to file necessary application under Order XXI Rule 86 of CPC. If such application is filed, the Executing Court/Subordinate Judge, Cheyyar shall consider the application, refund the amount deposited after defraying the expenses of the sale.
(ii) The Executing Court is directed to issue fresh proclamation for the sale.
(iii) There shall be no order as to costs.