Punjab-Haryana High Court
Ramji Lal And Another vs Sarab Singh (Dead) Through Lrs And ... on 24 August, 2010
Equivalent citations: AIR 2011 PUNJAB AND HARYANA 34
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CR NO.4345 of 2001 1
In the High Court for the States of Punjab and Haryana at Chandigarh.
CR No.4345 of 2001(O&M)
Decided on 24.8.2010.
Ramji Lal and another --Petitioners
vs.
Sarab Singh (dead) through LRs and others -- Respondents
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
Present: Mr.A.P.Bhandari,Advocate,for the petitioners
Mr.Rakesh Gupta,Advocate, for the respondents
Rakesh Kumar Jain, J,(Oral)
This revision petition is directed against the order dated
20.2.1997 passed by learned Addl.Civil Judge (Senior Division), Kaithal, by
which an application filed by Sarab Singh, judgment debtor (since
deceased) under order 21 Rules 89 and 90 of Code of Civil Procedure,1908
(for short, CPC) assailing the Court auction of the property in dispute in
favour of Ramji Lal and Chand Ram (petitioners) has been allowed and
upheld by learned Addl. District Judge, Kaithal, vide his order dated
3.4.2001.
Brief facts of the case are that M/S.Jyoti Parshad Vinod
Kumar and Krishan Kumar filed a suit against Sarab Singh for recovery of
CR NO.4345 of 2001 2
Rs.13,500/- which was decreed on 18.10.1986 for a sum of Rs.10,000/-
plus Rs.3350/- as interest from the date of filing of the suit @ Rs.1% and
further interest @ Rs.6% per annum till the date of realisation. The said
decree became final between the parties. The decree holders filed an
execution but the amount could not be recovered. Consequently, the land in
dispute measuring 15 kanals 13 marlas was sold by way of Court auction
on 4.2.1992. The petitioners were the highest bidders for a sum of
Rs.32,000/-. The sale was confirmed and sale certificate was issued in their
favour. The judgment debtor (Sarab Singh) filed a composite application
under Order 21 Rules 89 and 90 of CPC on 6.6.1992. It was also alleged
in para No.4 (i) (h) that the petitioners have not even paid 25% of the
auction money on the date of auction, therefore, sale should not have been
confirmed in their favour.
The application was contested by the petitioners before the
Court below. Issues were framed. Evidence was led. Ultimately, the trial
Court allowed the application and the sale dated 4.2.1992 confirmed on
07.3.1992 was set aside.
The petitioners have raised two legal issues (i) the property
was sold on 4.2.1992 which was confirmed on 7.3.1992, whereas the
objections were filed on 6.6.1992,therefore, the objections were not within
limitation. According to the learned counsel for the petitioners, the
objections should have been filed within 60 days from the date of auction
in terms of Article 127 of the Limitation Act, 1963 (for short the Act)
and (ii) that a composite application filed under Order 21 Rules 89 and 90
of CPC was not per-se maintainable.
Besides this, learned counsel for the petitioners has submitted
CR NO.4345 of 2001 3
that the Court below had no jurisdiction even to receive the application and
to adjudicate upon the issue of nullity of sale dated 4.2.1992.
In support of his submission that the application was barred by
limitation and could not have been entertained, learned counsel for the
petitioners has relied upon a judgment of the Supreme Court in the case of
Mohan Lal Vs. Sh. Hari Prasad Yadav (1994-3) P.L.R.234 and a
Division Bench judgment of Allahahad High Court in the case of Babu
Ram, Vs.Addl. District Judge, Dehradun, AIR 1983 Allahabad 170.
In support of his second contention, that a composite
application filed under Order 21 Rules 89 and 90 of CPC is not
maintainable , learned counsel has relied upon a decision of this Court in
the case of Smt. Parkash Kaur Vs. Smt.Sandhooran and another AIR
1979 Punjab and Haryana 36.
On the other hand, learned counsel for the respondents has
submitted that the petitioners have not deposited 25% of the auction
money on 4.2.1992, therefore, auction proceedings were a nullity in view
of Order 21 Rule 84 of CPC and secondly, the respondents/objectors
though filed an application under order 21 Rules 89 and 90 of CPC, they
had deposited the principal amount of Rs.10,000/- and Rs.3,350/- in fixed
deposit. He contended that the fixed deposit would be an indication that
the respondents/judgment debtors did not press the application insofar as
Order 21 Rule 90 of CPC is concerned. It is submitted that though the
respondents/judgment debtors had filed an application, yet it is not even
required as the Court can even take suo-moto notice of the violation of
Order 21 Rule 84 of CPC, which is mandatory in nature and can declare
the impugned sale to be nullity. In support of his submission, learned
CR NO.4345 of 2001 4
counsel for the respondents has relied upon a decision of the Supreme
Court in the case of Manilal Mohanlal Shah and others Vs. Sardar
Sayed Ahmed Sayed Mahmad and another, AIR 1954 Supreme Court
349'; Balram son of Bhasa Ram Vs. Ilam Singh and others, AIR 1996
Supreme Court 2781; Gangabai Gopaldas Mohata Vs.Fulchand and
others, AIR 1997 Supreme Court 1812 and a Single Bench judgment of
this Court in the case of Nichhattar Singh and others Vs. Babu Khan
and others, AIR 1972 Punjab and Haryana, 204 and also a decision of
Madhya Pradesh High Court in the case of M/s.Progressive Industrial
Enterprises Vs. Bank of Baroda and others AIR 1989 Madhya
Pradesh 177 and a decision of the Supreme Court in the case of Rao
Mahmood Ahmed Khan Vs. Sh.Ranbir Singh and others, AIR 1995
Supreme Court 2195, a decision of Bombay High Court in the case of
Jagdish Radhakisan Kayasth Vs. Ramesh N.Wagh and others AIR
2001 Bombay 152 and a Division Bench decision of this Court in the case
of Ram Singh Vs.Uttam Chand, AIR 1985 Pubjab and Haryana 351.
I have heard learned counsel for the parties and perused the
record with their assistance.
Before adverting to the rival contentions of learned counsel
for the parties, it would be fruitful to refer to the relevant provisions of
CPC. which have been invoked by both the learned counsel for the
parties:-
84. Deposit by purchaser and re-sale on
default. ----
(1) On the every sale of immovable property
the person declared to be purchaser shall pay
immediately after such declaration deposit of
twenty-five per cent on the amount of his
purchase-money to the officer or other person
CR NO.4345 of 2001 5
conducting the sale, and in default of such
deposit, the property shall forthwith be re-sold.
(2) Where the decree-holder is the purchaser
and is entitled to set-off the purchase-money
under rule 72, the Court may dispense with the
requirements of this rule.
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 calculating 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 rule 72.
89. Application to set aside sale on deposit -
(1) Where immovable property has been sold in
execution of a decree, [any person claiming an
interest in the property sold at the time of the sale
or at the time of making the application, or acting
for or in the interest of such person,] may apply
to have the sale set aside on his depositing in
Court,-
(a) for payment to the purchaser, a sum equal to
five per cent, of the purchase-money, and
(b) for payment to the decree-holder, the
amount specified in the proclamation of sale as
that for the recovery of which the sale was
ordered, less any amount which may, since the
date of such proclamation of sale, have been
received by the decree-holder.
(2) Where a person applies under rule 90 to set
aside the sale of his immovable property, he shall
not, unless he withdraws his application, be
entitled to make or prosecute an application
under this rule.
(3) Nothing in this rule shall relieve the
judgment-debtor from any liability he may be
under in respect of costs and interest not covered
by the proclamation of sale.
90. Application to set aside sale on ground of
irregularity or fraud -
(1) Where any immovable property has been
sold in execution of a decree, the decree-holder,
or the purchaser, or any other person entitled to
share in a rateable distribution of assets, or whose
CR NO.4345 of 2001 6
interests are affected by the sale, may apply to the
Court to set aside the sale on the ground of a
material irregularity or fraud in publishing or
conducting it.
(2) No sale shall be set aside on the ground of
irregularity or fraud in publishing or conducting
it unless, upon the facts proved, the Court is
satisfied that the applicant has sustained
substantial injury by reason of such irregularity
or fraud.
(3) No application to set aside a sale under this
rule shall be entertained upon any ground which
the applicant could have taken on or before the
date on which the proclamation of sale was
drawn up."
Facts in this case are not disputed.
Admittedly, there is a decree of recovery and the amount was not paid by the judgment debtor. The land in dispute was put to auction on 4.2.1992 ,which has been purchased by the petitioners being highest bidders for a sum of Rs.32,000/-. Admittedly, 25% of the bid amount was not deposited on the same date i.e. 4.2.1992. However, the entire amount was paid within 15 days.
Now, the questions involved in this revision petition which are mentioned in the opening part of the judgment would be decided one by one.
Question No.1'whether an application filed under Order 21 Rules 89 and 90 CPC after a period of 60 days from the date of impugned sale is within limitation ? In this regard, Article 127 of the Limitation Act is to be referred to which provides that ' to set set a sale in execution of a decree including any such application by a judgment debtor, time period is 60 days from the date of the sale'.
CR NO.4345 of 2001 7
In the present case, sale took place on 4.2.1992 and the application was filed for setting aside the sale on 6.6.1992/26.6.1992, which is apparently beyond the period of limitation. The Supreme Court in Mohan Lal's Case (Supra) has held that an application under Order 21 Rule 89 of CPC could be filed only within 60 days and the said period cannot be condoned with the aid of Section 5 of the Limitation Act or even extended with the help of Section 148 CPC. In nutshell, the law laid down by the Supreme Court is that if an application is filed after a period of 60 days, it is barred by time in terms of Article 127 of the Limitation Act. Similar view has been taken by the Allahabad High Court in Chunni Lal's Case (Supra) in which objections were filed under Order 21 Rule 90 CPC which were required to be filed within a period of 30 days as per unamended Article 127 of the Act. In the said case, auction sale took place on 21.5.1978 whereas objections under Order 21 Rule 90 were filed on 2.9. 1978, therefore, it was found to be beyond 30 days and the said period was not found to be not condonable. No judgment to the contrary has been cited by learned counsel for the respondents/judgment debtors, therefore, the first point raised by the learned counsel for the petitioners that the application was barred by limitation, is answered in their favour.
Now adverting to the second question as to 'whether a composite application under Order 21 Rules 89 and 90 of CPC is maintainable ?.
A close reading of Order 21 Rules 89 and 90 of CPC would show that where the suit property has been sold in execution of a decree, a person who has any interest in the property at the time when the property CR NO.4345 of 2001 8 was sold or at the time when the application was made, may apply to have the sale set aside by depositing in Court for payment to the purchaser, a sum equal to five percent of the purchase-money and for payment to the decree holder , the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder. As a matter of fact, while moving an application under Order 21 Rule 89 of CPC, the judgment debtor throws himself to the mercy of the Court much- less the auction purchaser or the Decree holder whereas in an application moved under Order 21 Rule 90 C.P.C. the judgment debtor challenges the process of auction sale on the ground of irregularity or fraud in publishing or conducting it or if the Court is satisfied that the judgment debtor has sustained substantial injury by reason of such irregularity or fraud, the sale in favour of auction purchaser could be set aside. Import of Rules 89 and 90 are altogether different. From a bare perusal of Order 21 Rule 90, it is evident that a composite application under Order 21 Rules 89 and 90 is not maintainable. In this regard, the support is taken from the decision of this Court in Smt. Parkash Kaur 's Case (Supra) in which similar question was involved and it was decided that a composite application is not maintainable. Thus, the second question raised by learned counsel for the petitioners is decided in their favour.
The question is as to whether after the decision of both points about limitation and maintainability of the application, orders of both the Courts below could be sustained ?
Learned counsel for the respondents has argued that admittedly CR NO.4345 of 2001 9 the property in dispute has been sold in terms of Order 21 Rule 84 of CPC which provides that on the every sale of immovable property the person declared to be purchaser shall pay immediately after such declaration twenty-five per cent of the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold.
It is submitted that this provision has been interpreted by the Supreme Court and the various High Courts and is held to be mandatory. In case of Manilal Mohan Lal Shah's Case (Supra), the Apex Court has held as under:-
" Having examined the language of the relevant rules and the judicial decisions bearing upon the subject we are of the opinion that the provisions of the rules requiring the deposit of 25% of the purchase money immediately on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon non-compliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser without depositing 25% of the purchase money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Non-payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. The very fact that the Court is bound to re-sell the property in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eyes of law".
Some-what similar view has been taken by the Supreme Court in the case of Balram's Case (Supra) and Gangabai 's Case (Supra).
Learned counsel for the petitioners has referred to two CR NO.4345 of 2001 10 judgments i.e. one of Madhya Pradesh High Court in M/s. Progressive Industrial Enterprises's Case (Supra) and a decision of the Supreme Court in Rao Mahmood Ahmed Khan's Case (Supra). In these two cases, at the time of sale, payment was made by way of cheque which was encashed on a later date. The question arose as to whether the amount realised by encashing the cheque would relate back to the date when the auction took place. It was held by the Supreme Court that the said payment by cheque would not be considered to be a payment made at the time of sale. Thus, the learned counsel for the respondents has submitted that payment of 25% on the date of sale is a sine-qua-non for holding the sale to be legal in the eyes of law.
The question then arises as to whether the Court can set aside the sale dehors the application filed by the objector/judgment debtor under Order 21 Rule 89 CPC. In this context, there is a decision of this Court in the case of Ram Singh (Supra) in which it has been held that:-
"Adverting to the second question, it was for the Executing Court to see whether the provisions of O.21 Rules 84 and 85 of the Code have been complied with or not, even if the judgment debtor could not bring these to the notice of the Court. In Nichhattar Singh's Case (AIR 1972 Punj and Har 204) (supra), it was laid down that if provisions of O.21, Rule 85 of the Code are not complied with , the sale proceedings become a nullity and the Court is bound to put the property to re-sale under Rule, 86 of the Code irrespective of the fact that no application has been made by any party to the proceedings to challenge the sale. In Kailash Nath Mehta Vs. State of Punjab, (1982) 84, Pun L.R.71, it was held that once there is a violation of provisions of O. 21 Rule 85, of the Code, the sale becomes non est and void and there is no necessity of challenging the sale nor can there be any question that the objections filed to impugn the sale were time barred".CR NO.4345 of 2001 11
The Court is now faced with a situation where the sale in favour of the petitioners is not in accordance with Order 21 Rule 84 of CPC as the petitioners/purchasers did not deposit 25% amount at the time of sale.
Thus, I hold that the orders passed by the Courts below are well in accordance with law as they not suffer from any irregularity or illegality because in the auction proceedings dated 4.2.1992, the petitioners did not deposit 25% of the sale amount at the time of fall of hammer and as such the auction proceeding was a nullity.
In view of the above, I do not find any merit in this revision petition and the same is hereby dismissed.
24.8.2010 (Rakesh Kumar Jain) RR Judge