Andhra HC (Pre-Telangana)
K.Vijay Anand, S/O.K.V.Anand vs Smt.Y.Suvarna, W/O.Y.Mallesh And ... on 17 July, 2013
Author: N. Ravi Shankar
Bench: N. Ravi Shankar
HON'BLE THE CHIEF JUSTICE SRI N. RAVI SHANKAR
CIVIL REVISION PETITION No.3672 of 2011
dated:17-07-2013
K.Vijay Anand, S/o.K.V.Anand... Petitioner
Smt.Y.Suvarna, W/o.Y.Mallesh And others.. Respondents
Counsel for the petitioner: Smt.Manjari S.Ganu
Counsel for respondent No.1:Sri Rama Krishna for
Sri V.Hari Haran
Counsel for respondents 2 and 3: None appeared.
<Gist:
>Head Note:
?Citations:
1) (1986) 1 SCC 615 = AIR 1986 SC 589
2) 2010 (6) ALT 135
3) (1995) 4 SCC 718
4) AIR 1987 AP 182 (FB)
5) 2003 (1) An.W.R. 295 (A.P.)
6) 2009 (6) ALT 249
7) 2011 (2) ALT 599
THE HON'BLE SRI JUSTICE N. RAVI SHANKAR
CIVIL REVISION PETITION No.3672 of 2011
ORDER:
Heard Smt.Manjari S. Ganu, learned counsel for the petitioner and Sri Rama Krishna, appearing for Sri V.Hari Haran, learned counsel for the first respondent. The other respondents did not appear.
2. The point in this revision is whether the local amendment made by the High Court of Andhra Pradesh to Rule 85 of Order XXI of the Code of Civil Procedure, 1908 (Code) requiring the auction purchaser to deposit along with the full purchase money, the amount required for general stamp i.e., Non-Judicial Stamp paper for issuing the sale certificate can be said to have become invalid after the Code was amended by the Central Amendment Act 104 of 1976 (the Central Amendment Act).
3. If the above local amendment is held to be invalid the petitioner would succeed in the revision or else he would fail.
4. The point arises in the following circumstances. The second respondent P.Narasimhulu, who is the decree holder brought the suit O.S.No.148 of 2000 in the court of III Junior Civil Judge, City Civil Court, Hyderabad against the third respondent/judgment debtor and obtained a money decree against him. In execution of the said decree, he filed E.P. No.93 of 2003 and the concerned immovable property of the judgment debtor was attached.
5. Subsequently, the first respondent Smt.Y.Suvarna filed claim petition under Order XXI Rule 58 of the Code but she was unsuccessful even in this court also and that became final. Smt.Manjari based upon this fact has argued that the first respondent has no locus standi to oppose this revision. It can be said that she is technically right but as the counsel for the first respondent cited certain decisions which are helpful in deciding the point he has also been heard in the matter.
6. Now reverting back to the facts in the revision, the property which is a house property situated at Hyderabad was brought for sale on 23.7.2004. The petitioner became the highest bidder and the sale was knocked down in his favour and he deposited the entire purchase money within the time stipulated in accordance with Rule 85 of Order XXI of the Code. This is not in dispute.
7. It may however be noted that according to the local amendment which was earlier made by the High Court of Madras in 1944 and which was adopted by the High Court of Andhra Pradesh (hereinafter was referred to as 'local amendment') to Rule 85 of Order XXI of the Code, the auction purchaser is also required to deposit the amount for the general stamp for issuing the sale certificate under Rule 94 within the time stipulated in Rule 85 i.e., before the court closes on the 15th day from the sale.
8. In the present case, the auction purchaser did not deposit the amount for stamp paper as required by the local amendment to Rule 85. Subsequently he filed E.A. No.150 of 2008 for grant of sale certificate under Rule 94 of Order XXI of the Code. The executing court upon hearing the counsel for the petitioner and also the counsel for the first respondent dismissed that application by its order dated 20.1.2011 on the ground that the petitioner did not comply with the aforesaid local amendment in depositing the amount for stamp paper along with purchase money and therefore the time cannot be extended for depositing it and consequently the sale is vitiated by material irregularity. That order is now questioned in this revision by the auction purchaser giving rise to the above point.
9. To decide the point, it is necessary to look at Sub-section (1) of Section 97 of the Central Amendment Act by which several amendments were carried out to the Code and which amendments came into force from 01.2.1977. Sub-section (1) of Section 97 reads as follows.
"any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed."
10. Sub-section (2) of Section 97 deals with applicability of various amendments to proceedings pending prior to the commencement of the said amendment Act and that is not necessary as all the present proceedings arose only after the Central Amendment Act came into force.
11. A perusal of Sub-section (1) of Section 97 would show that only those amendments made to or any provision inserted in the principal Act i.e., the Code by a State Legislature or a High Court before the commencement of that amendment Act would become invalid if they become inconsistent with any of the provisions of the Code as amended by Central Amendment Act.
12. Now turning to Rule 85 of Order XXI of the Code as it stood prior to the Central Amendment Act was 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 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.
13. Then the local amendment made by the High Court of Andhra Pradesh reads as follows.
"85. Time for payment in full of purchase-money and of stamp certificate of sale.-The full amount of purchase money payable and the general stamp for the certificate under rule 94 or the amount required for such stamp, shall be deposited into Court by the purchaser before the Court closes on the fifteenth day from the sale of the property:
Provided that in calculating the amount of purchase-money to be so deposited the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72."
14. It may be noted that while amending the Code by the Central Amendment Act, Rule 85 has not been touched. This is admitted by both the counsel.
15. However, Smt.Manjari's contention is that by reason of Sub-section (1) of Section 97 of the Central Amendment Act all the previous amendments made by a State Legislature or a High Court which are inconsistent with the existing provisions must be held to be invalid after the above amendment Act came into force irrespective of the fact whether or not the existing provisions were touched by the said amending Act. Her contention is that local amendment to Rule 85 requiring deposit of stamp duty along with the purchase money which is not found in Rule 85 itself must be held to be invalid treating it as contrary to the main Rule 85 after the Central Amendment Act.
16. In support of the above contention, she relied upon a two Judge Bench decision dated 07.1.1986 of the Hon'ble Supreme Court given in Ganpat Giri v II ADJ1. She placed reliance upon another decision dated 10.8.2010 of a learned single Judge of this court given in G.Venkata Reddy v B.Venkata Reddy2. This later decision is directly on the point and it no doubt supports her contention.
17. In Ganpat Giri's case which went from the State of Uttar Pradesh the court was dealing with a situation where the decree holder himself purchased the property in the court auction without the prior permission of the court in violation of Rule 72(1) of Order XXI. It may be noted that there was a local amendment in the State of Uttar Pradesh to Rule 72 by which the decree holder was enabled to buy the property of the judgment debtor in the court auction without the prior permission of the court and this amendment was effected prior to coming into force of the Central Amendment Act.
18. It may be noted that the provisions of the Central Amendment Act did not touch or amend Rule 72 or it did not indicate that the aforesaid U.P. local amendment was repealed. Yet, the Hon'ble Supreme Court in Ganpat Giri's case going by the language of Sub-section (1) of Section 97 of the Central Amendment Act which is already extracted supra held that all previous amendments made by the State Legislatures or the High Courts must be held to be invalid whether or not the existing provisions in the Code were amended by the Central Amendment Act if such local amendments were found in conflict with the provisions in the Code.
19. On the above ratio, it was held in Ganpat Giri's case that by reason of the Central Amendment Act the U.P. amendment to Rule 72 which was to the effect that the decree holder did not require the permission of the court to buy the property in court auction was invalid in view of the existing Rule 72(1) which requires such permission to be taken. Basing upon this judgment, a learned single Judge of this court in G.Venkata Reddy's case referred to supra held that the local amendment to Rule 85 requiring deposit of stamp duty charges along with full purchase money stood impliedly repealed and non-deposit of the same in time cannot constitute a material irregularity which vitiates the sale. The aforesaid two decisions do support the contention of Smt.Manjari.
20. A three Judge Bench of the Hon'ble Supreme Court again considered the effect of Section 97(1) of the Central Amendment Act in Pt. Rishikesh v Salma Begum3. The question in that case was whether Rule 5 introduced in Order XV of the Code by Uttar Pradesh Laws Amendment Act 37 of 1972 and substituted by new Rule 5 of U.P. Civil Laws (Reforms and Amendment) Act, 1976, both of which were brought into force prior to the Central Amendment Act stood repealed by Section 97(1) of Central Amendment Act.
21. Originally Order XV consisted of only Rules 1 to 4 and they dealt with the disposal of a suit at the first hearing. By the Central Amendment Act, Rule 2 of Order XV was amended. Even before the Central Amendment Act the U.P. State Legislature introduced Rule 5 in 1972 and again amended it in 1976. The purport of Rule 5 was in a landlord-tenant suit for eviction and even in a small cause suit for recovery of rents for the buildings, the tenant is required to deposit admitted arrears of rents to contest the suit and if a tenant failed to deposit such arrears of rents his defences could be struck off in the circumstances stated therein. This U.P. amendment i.e., Rule 5 is similar to the present Order XVA in the Code in the State of A.P. In the State of Uttar Pradesh, Order L of the Code was also amended to apply Rule 5 to small cause suits in respect of buildings. Further details in this behalf are not necessary.
22. The contention of tenants before the Supreme Court was that after the Central Amendment Act was brought into force, by reason of Section 97(1) thereof the above Rule 5 introduced by the U.P. Amendment in Order XV stood impliedly overruled as it was inconsistent with the Code as amended by the Central Amendment Act. The learned counsel who argued on behalf of the tenants relied upon the proposition laid down in Ganpat Giri's case in support of tenant's contention that Rule 5 of Order XV in force in the State of U.P. was invalid as it was in conflict with the Central Amendment Act even though Order XV in the Code as it was, was not touched by the Central Amendment Act. This contention was rejected by the Supreme Court.
23. In para 20 of the judgment in Pt. Rishikesh's case the Supreme Court dealt with the proposition laid down in Ganpat Giri's case and held that the said proposition must be confined to that case and cannot be extended to all provisions and situations. This will be clear from the following observations. The ratio therein (Ganpat Giri's case) must be understood in the light of the facts therein. Rule 72 of Order 21 CPC was amended by the State Legislature, equally the Central Amendment Act repealed the existing rule and re-enacted the rule so as to be self-operative and complete code consistent with the development of the law. Therefore, the Bench held that State Amendment since was not consistent with the Central Amendment Act, the State Amendment was declared repugnant to the Central Amendment Act. Therefore, it became void unless it was re-enacted by the State Legislature, reserved for consideration and received the assent of the President. The ratio on the facts in that case is unexceptionable but observations which we have noted above, gave rise to a construction advanced by the counsel. The wide construction put up by the Bench with due respect does not appear to be sound.
24. It also considered at length Section 97(1) of the Central Amendment Act, the scope and effect of clauses (1) and (2) of Article 254 of the Constitution which deals with inconsistency between the laws made by the Parliament and the laws made by the State Legislatures regarding the matters in the concurrent list, and the previous case law on the questions and concluded that unless both the laws or a particular provision of each law occupy the same field and run counter to each other, conflict cannot be inferred to apply the restriction in Article 254(1). This is also clear from the following passage in the judgment. The condition precedent to bring about repugnancy should be that there must be an amendment made to the principal Act under the Central Amendment Act and the previous amendment made by a State Legislature or a provision made by a High Court must occupy the same field and operate in a collision course. Since the State Act as incorporated by Act 37 of 1972 and the Explanations to Rule 5 by Act 57 of 1976, Rule 5 was not occupied by the Central Amendment Act in relation to the State of U.P., they remain to be a valid law. We may clarify at once that if the Central law and the State law or a provision made by the High Court occupy the same field and operate in collision course, the State Act or the provision made in the Order by a High Court being inconsistent with or in other words being incompatible with the Central Amendment Act, it becomes void unless it is re-enacted, reserved for consideration and receives the assent of the President after the Central Amendment Act was made by Parliament i.e. 10-9-1976.
25. The decision in the aforesaid case would thus show that the Central Amendment Act should have amended the existing provision in the Code and that the local amendment if any made in any State should run counter to such an amendment made in the Code in order to apply Section 97(1) to hold that the local amendment is contrary to the amended provision in the Code. It is also observed that the proposition in Ganpat Giri's case must be confined only to that case and the wide construction placed in the said decision on the scope of Section 97(1) cannot be extended to all cases. The decision in Pt. Rishikesh would further show that the court has to decide the question as to whether there is any direct conflict between the provisions enacted by Central Amendment Act in the Code and the previous amendments made by the State Legislatures or the High Courts by examining the question whether they occupy the same field or pertain to same subject and run counter to each other. Going by the above proinciple, the point has now to be decided by examining whether Rule 85 and local amendment deal with the same subject.
26. It may be noted that, as already mentioned, Rule 85 has not been touched by Central Amendment Act. To repeat, it stipulates that the full amount of the purchase money payable by the auction purchaser shall be paid into the court before the court closes on the 15th day from the sale of the property. It does not speak of payment of charges for the stamp duty though a sale certificate issued by a court is also chargeable to stamp duty under the provisions of the Stamp Act.
27. It may also be noted that as matters stand, such stamp duties or their rates have to be prescribed by the respective State Governments under the Stamp Act which is again a Central Act in respect of sale of immovable properties in the States. In the State of A.P., Entry 16 of Schedule IA (enacted by the State of A.P.) to the Stamp Act prescribes the stamp duty for a sale certificate issued by a civil court and where the consideration exceeds to Rs.25/- it is chargeable to stamp duty as a conveyance.
28. The above position relating to stamp duty on sale certificates issued by civil courts was there even in the earstwhile Madras State and that State adopted its local amendment in 1944 to Rule 85 and that was adopted by the State of A.P. It may be noted that if the court does not collect the stamp duty on the sale certificate to be issued it becomes a party to the violation of the law relating to stamp duty and this is not permissible. That is why the above local amendment of Madras State was adopted by the State of A.P. also.
29. Thus what should be noted is that by the above local amendment made to Rule 85 this court did not whittle down the rigour of Rule 85 to benefit the auction purchaser or change it to his disadvantage. The local amendment to Rule 85 can be said to have been made only with the object of complying with the Stamp Act as applicable in the State of A.P. in demanding the payment of stamp duty required for sale certificate to be issued.
30. In A.P.Steel Wool Industries Co-op. Society Ltd., v Labour Court, Hyderabad4 (referred to by Sri Rama Krishna, counsel for the first respondent), a Full Bench consisting of five Judges of this court considered the question as to how a State Law and a Central Law can be decided to operate in the same field or deal with the same subject and when they can be said to be in conflict with each other in order to apply the restriction in Article 254(1). This is consistent with the decision of Supreme Court in Pt. Rishikesh. The Full Bench held that where both the laws operate in the different fields which are within the domains of the respective legislatures then they cannot be said to be in conflict with each other within the meaning of Article 254.
31. In the present case, to repeat, as fixation of rates of stamp duty is within the domain of the State Legislature/ State Government, it can be said that Rule 85 was amended in the State of A.P. only to comply with the said law relating to levy of stamp duty and it can be said to have imposed only an additional requirement of deposit of stamp duty charges in compliance with the said law. It may also be noted that according to Section 29(f) of the Stamp Act as amended in the State of Andhra Pradesh in the case of a certificate of sale which includes a sale certificate issued by a court, the purchaser of the property has to pay the stamp duty. It therefore can be said that there is no conflict between the local amendment and Rule 85 even after the commencement of the Central Amendment Act.
32. It may also be noted here that in three other decisions of this court viz., Kudiyala Rama v Vattikolla Somaraju5 (a decision dated 02.1.2003), Dasarla Koteswaramma v Alla Venkayamma6 (a decision dated 17.7.2009) and V.Vedanda Vysulu (died) per LRs v K.Purushotham7 (a decision dated 31.1.2011) the compliance with the local amendment has been held to be mandatory. They can therefore be said to be consistent with the view of the three Judge Bench decision of the Supreme Court in Pt. Rishikesh though the said decision was not discussed in them. In view of the three Judge Bench decision of the Supreme Court in the case of Pt. Rishikesh the decision of the Supreme Court in Ganpat Giri and the decision of the learned single Judge of this court in G.Venkata Reddy need not be upheld and therefore there is also no need to refer the matter to a Division Bench. Thus it follows that the local amendment made to Rule 85 has to be held to be valid and it does not stand overruled by the Central Amendment Act.
33. One argument advanced by Smt.Manjari is that it is the deposit of total sale consideration which is important and the auction purchaser can be called upon to deposit the stamp duty charges for sale certificate at a later stage when the court actually decides to issue the same and therefore non-deposit of the same should be treated only as a curable irregularity. It is for the authority which makes the amendments to the CPC to consider this aspect and it is a policy decision which cannot be taken by this court. Hence the above argument is not considered as this court cannot legislate in the matter.
34. Accordingly, for the aforesaid reasons, the revision is dismissed. Miscellaneous petitions pending if any shall stand closed. No costs.
______________________ N. RAVI SHANKAR, J dated:17-07-2013