A sale made, therefore, without notice to the judgment debtor is a nullity since it divests the judgment debtor of his right, title and interest in his property without an opportunity. The jurisdiction to sell the property would arise in a court only where the owner is given notice of the execution for attachment and sale of his property. It is very salutary that a person's property cannot be sold without his being told that it is being so sold and given an opportunity to offer his estimate as he is the person who intimately knew the value of his property and prevailing in the locality, exaggeration may at time be possible. In Rajagopal Iyer v. Ramachandra Iyer , the Full Bench held that a sale without notice under Order 21 Rule 22 is a nullity and is void and that it has not got to be set aside. If an application to set aside such a void sale is made it would fall under Section 47.
ALLAHABAD HIGH COURT
Case :- CIVIL REVISION No. - 145 of 2009
Revisionist :- Amit Kumar S/O Late V.P. Ram
Opposite Party :- Prem Kumar Garg S/O Panna Lal Garg & Anr.
CITATION;AIR 2015(NOC)885ALL
Hon'ble Anil Kumar,J.
Heard Sri S.M.K. Chaudhary, Senior Advocate assisted by Sri Adnan Ahmad, learned counsel appearing on behalf of revisionist, Sri Shashi K. Sinha, learned counsel appearing on behalf of auction purchaser and perused the record.
Sri Rajendra Kumar Sharma is the owner of the property situated at 1/107, Vijay Khand, Gomti Nagar, Lucknow (hereinafter referred as premisses in question) and Sri Amit Kumar/revisionist is tenant.
In the year 1999, landlord/Rajendra Kumar Sharma filed a suit registered as S.C.C. Suit No. 51 of 1999, for ejectment, rent and damages against the revisionist. During the pendency of the same, the premises was vacated by the revisionist and the possession given to landlord.
Thereafter by an order dated 29.01.2002, the suit was decreed for rent and dues for as Rs. 39000/- arrears and Rs. 13526 as electricity Bill /- against Sri Amit Kumar/revisionist. As the decree passed in the SCC suit has not been satisfied, so the landlord/Rajendra Kumar Sharma/decree-holder filed an execution Case No. 01/2002 (Rajendra Kumar Sharma Vs. Amit Kumar). In spite of the service of the notice in the execution case, the revisionist/Amit Kumar has not put his appearance, as such on 19.10.2005, property of Sri Amit Kumar at house No. 5/162 Vinay Khand, Gomti Nagar, Lucknow having area of 3,152 sq. ft. (hereinafter referred to as the property) has been attached and on 21.10.2005 notice of attachment was affixed on the property.
On 09.05.2006, the judgment-debtor moved an application under section 151 CPC thereby tendering a sum of Rs. 12526/- by bank draft and cheque of Rs. 40,000/- in order to satisfy the decree, the same was considered/adjudicated by executing Court on 12.05.2006 (forenoon) an order has been passed by which the said amount has been handed over to the counsel for decree-holder, with a direction to file reply if the same is encashed within seven days and if not, objection be filed, fixed the matter for disposal on 19.05.2006, however, on the same day, in the afternoon (at 2.30 p.m.), the auction of the property took place and Sri Prem Kumr Garg/O.P. No. 1 has purchased the same for a sum of Rs. 1,60,000/-, deposited Rs. 40,000/- i.e. 1/4th of the auction money plus Rs. 3200/- as poundage money with the authority concerned conducting the auction.
Aggrieved by the same, an application under Order 21 Rule 89 CPC has been moved on behalf of the judgment-debtor/revisionist for setting aside the sale, and executing court by order dated 24.05.2006 set aside the sale. The said order has been challenged by the auction purchaser by filing a Revision No. 131 of 2006 (Prem Kumar Garg Vs. Rajendra Kumar Sharma and another), allowed by order dated 28.04.2008, relevant portion quoted as under:-
"As it appears from the facts, before the sale, an application dated 27.04.2006 was filed along with a Bank Draft of Rs. 12526/- and four cheques of the dates subsequent to the date of the sale. The court did not recall warrant for subsequent to the date of sale. Tehrefore, the sale was held as scheduled on 12.05.2006 in presence of the decree-holder.
After the sale, the judgment-debtor moved an application under Order 21 Rule 89 of the Code of Civil Procedure for cancellation of the sale. In the said applcation also he referred the same faacts regarding payment of the decretal amount as were incorporated in the applciation datd 27.04.2006. The execution court on that very date without affording any opportunity of hearing to the applicant in a most causal and arbitrary manner wihtout looking the Order 21 Rule 89 as well cancelled the sale and struck off the execution.
Order 21 Rule 89 of the Code of Civil Procedure in case of cancellation of sale certain amount is required to be paid to the purchaser. Since the entire decretal amount was not paid prior to the sale of the property and an application was moved subsequent to the sale under Order 21, Rule 89 the passing of the order without compliance of the requirement of the provisions of Order 21 Rule 89 was wrong.
It view of the above, the order of the execution court is clearly erroneous and deserves to be set aside.
The revision is, therefore, allowed and the order dated 24.05.2006 is hereby set aside. The matter is sent back to the execution court to decide the application afresh in the light of Order 21, Rule 89 C.P.c. in accordance with law."
Thereafter, the matter has come up for consideration before the executing court and by an order dated 26.11.2009, the application moved by judgment-debtor/revisionist under Order 21 Rule 89 has been rejected.
In view of the said factual background, present revision has been filed by the judgment-debtor/revisionist under Section 25 of the Provincial Small Cause Court Act, 1887 before this Court.
Sri S.M.K. Chaudhary, learned senior counsel appearing on behalf of revisionist while challenging the impugned order submits that once the decretal amount tendered by the judgment-debtor/revisionist by way of bank draft amounting to Rs. 12526/- and cheque of Rs. 40,000/- accepted by the counsel for the decree holder as per order on 12.05.2006 passed by executing court seven days time is granted to file an objection and fixed 19.05.2006 for disposal, thereafter, the decree holder has deposited the said bank draft/cheque in his bank account (Vijaya Bank) and the same has been credited, so the decree against the revisionist stood satisfied, as such, the auction of the property is nullity, liable to be set aside.
Next argument advanced by learned senior counsel appearing on behalf of revisionist that in the present case, the property is situated in the Gomti Nagar one of the posh area of the city of the Lucknow, so the value of the property is much more high in comparison to the amount for which it has been auctioned in order to satisfy the decree holder, so the auction in question is liable to be set aside.
Sri Shashi K. Sinha, learned counsel for auction-purchaser, submits that in the present case, when the judgment-debtor/revisionist failed to satisfy the decree passed against him in SCC Suit No. 51 of 1999 and the landlord/decree holder has filed an execution Case No. 1 of 2002 in which property of the judgment-debtor/revisionist has been attached, sale proclamation issued, thereafter, the auction took place in which and his client/Prem Kumar Garg has purchased the same, so keeping in view the said facts as well as finding given by the court below while rejecting the petitioner's application under Order 21 Rule 89 CPC, the auction is perfectly valid as that the judgment-debtor/revisionist has failed to satisfy the decree, as such no interference is need in the instant matter because auction-purchaser after purchasing the property in open auction for a sum of Rs. 1,60,000/- deposited 1/4th amount i.e. Rs. 40,000/- and Rs. 3200/- as poundage money on 12.05.2006 thereafter, the remaining amount of Rs. 1,20,000/- also deposited on 17.12.2009.
He further argued that in the present case, this Court on 28.04.2008 in a revision No. 131 of 2006 (Prem Kumar Garg Vs. Rajendra Kumar Sharma) has given a finding that "Order 21 Rule 89 of the Code of Civil Procedure in case of cancellation of sale cetain amount is required to be paid to the purchaser. Since the entire decretal amount was not paid prior to the sale of the property and an application was move dsubsequent to the sale under Order 21, Rule 89 the passing of the order without compliance of the requirement of the provisions of Order 21 Rule 89 was wrong, so keeping in view the said facts, there no illegality or infirmity in the order been passed by the court below,liable to be dismissed.
I have heard learned counsel for parties and gone through the record.
When the property is put for auction to satisfy a decree of the court, it is mandatory for the court executing the decree, to comply the following stages before the property if sold on an auction for a particular decree:-
(a) An attachment of the immovable property
(b) Proclamation of sale by auction.
(c) Sale by public auction.
Each stage of the sale is governed by the provisions of Code of Civil Procedure and in this regard, the Hon'ble Apex Court in the case of Desh Bandhu Gupta Vs. N.L. Ananad & Rajinder Singh, (1994) 1 SCC 131, has laid down the procedure for sale of a property and the principle which has to be kept in mind by a court while deciding issue in question, relevant portion quoted as under:-
"However, there is considerable force in the contention of the appellant that the procedure prescribed under Order 21 Rule 66 was flagrantly violated by the Executing Court. We have already noted the order of the court to conduct the Sale. For judging its legality and validity, it would be desirable to have a bird's eye view of the procedure for sale of immovable property in execution. On an application for execution filed under Order 21 Rule 5 the court shall ascertain the compliance of the pre-requisites contemplated under Rule 17 and on finding the application in order, it should be admitted and so to make an order, thereon to issue notice under Rule 22, subject to the conditions specified therein. If a notice was served on the judgment debtor as enjoined under Order 5 but he did not appear or had not shown cause to the satisfaction of the court, under Rule 23 the court "shall order the decree to be executed". If an objection is raised to the execution of the decree, by operation of Sub-rule (2) thereof, "the court shall consider such objections and makes such order as it thinks fit". Thereafter in the case of a decree for execution against immovable property and attachment under Rule 54 should be made by an order prohibiting the judgment debtor from transferring or creating encumbrances on the property. Under Rule 64 the court may order sale of the said property. Under Rule 68(2) proclamation of sale by public auction shall be drawn up in the language of the court and it should be done after notice to the decree holder and the judgment debtor and should state "the time and place of sale" and "specified as fairly and accurately as possible" the details specified in Clauses (a) to (d) of Sub-rule (2) thereof. The Civil Rules of practice in Part L in the Chapter 12 framed by the High Court of Delhi 'Sale of Property and Delivery to the Purchaser' Rule 2 provides that whenever a court makes an order for the sale of any attached property under Order 21, Rule 64, it shall fix a convenient date not being distant more than 15 days, for ascertaining the particulars specified in Order 21 Rule 66(2) and settling the proclamation of sale. Notice of the date so fixed shall be given to the parties or their pleaders,. In Rule 4 captioned 'Settlement of Proclamation of sale, estimate of value' it is stated that on the day so fixed, the court shall, after perusing the documents, if any, and the report referred to in the proceeding paragraph, after examining the decree holder and judgment debtor, if present, and after making such further enquiry as it may consider necessary, settle the proclamation of sale specifying as clearly and accurately as possible the matters required by Order 21 Rule 66(2) of the Code. The specifications have been enumerated in the rule itself. The proclamation for sale is an important part of the proceedings and the details should be ascertained and noted with care. This will remove the basis for many a belated objections to the sale at a later date. It is not necessary to give any proclamation of sale the estimate of the value of the property. The proclamation when settled shall be signed by the Judge and get it published in manner prescribed by Rule 67. The court should authorise its officers to conduct sale. Under Rule 68 the sale should be conducted at "the place and time" specified or the time may be modified with the consent in writing of the judgment debtor. The proclamation should include the estimate, if any, given by either JD or DH or both the parties. Service of notice on Judgment debtor under Order 21 Rule 66(2), unless waived by appearance or remained ex parte, is a fundamental step in the procedure of the court in execution. J.D. should have an opportunity to give his estimate of the property. The estimate of the value of the property is a material fact to enable the purchaser to know its value. It must be verified as accurately and fairly as possible so that the intending bidders are not misled or to prevent them from offering inadequate price or to enable them to make a decision in offering adequate price. In Gajadhar Prasad and Ors. v. Babu Bhakta Ratan and Ors. MANU/SC/0013/1973 : [1974]1SCR372 , this Court, after noticing the conflict of judicial opinion among the High Courts, held that a review of the authorities as well as the amendments to Rule 66(2)(e) make it abundantly clear that the court, when stating the estimated value of the property to be sold, must not accept merely the ipse dixit of one side. It is certainly not necessary for it to state its own estimate. If this was required, it may, to be fair, necessitate insertion of something like a summary of a judicially considered order, giving its grounds, in the sale proclamation, which may confuse bidders. It may also be quite misleading if the court's estimate is erroneous. Moreover, Rule 66(2)(e) requires the court to state only nature of the property so that the purchaser should be left to judge the value for himself. But, the essential facts which have a bearing on the very material question of value of the property and which could assist the purchaser in forming his own opinion must be stated, i.e. the value of the property, that is, after all, the whole object of Order 21, Rule 66(2)(e), CPC. The court has only to decide what are all these material particulars in each case. We think that this is an obligation imposed by Rule 66(2)(e). In discharging it, the court should normally state the valuation given by both the decree holder as well as the judgment debtor where they both have valued the property, and it does not appear fantastic. It may usefully state other material facts, such as the area of land, nature of rights in it, municipal assessment, actual rents realised, which could reasonably and usefully stated succinctly in a sale proclamation has to be determined on the facts of each particular case. Inflexible rules are not desirable on such a question. It could also be angulated from another perspective. Sub-rule (1) of Rule 66 enjoins the Court that the details enumerated in Sub-rule (2) shall be specified as fairly and accurately as possible. The duty to comply with it arises only after service of the notice on the judgment-debtor unless he voluntarily appears and given opportunity in the settlement of the value of the property. The absence of notice causes irremedial injury to the judgment debtor. Equally publication of the proclamation of sale under Rule 67 and specifying the date and place of sale of the property under, Rule 66(2) are intended that the prospective bidders would know the value so as to make up their mind to offer the price and to attend at sale of the property and to secure competitive bidders and fair price to the property sold. Absence of notice to the judgment debtor disables him to offer his estimate of the value who is better known of its value and to publicise on his part canvassing and bringing the intending bidders at the time of sale. Absence of notice prevents him to do the above and also disables him to know fraud committed in the publication and conduct of sale or other material irregularities in the conduct of sale. It would be broached from yet another in the year 2001 to decide theangle. The compulsory sale of immovable property under Order 21 divests right, title and interest of the judgment debtor and confers those rights, in favour of the purchaser. It thereby deals with the rights and disabilities either of the judgment debtor or the decree holder. A sale made, therefore, without notice to the judgment debtor is a nullity since it divests the judgment debtor of his right, title and interest in his property without an opportunity. The jurisdiction to sell the property would arise in a court only where the owner is given notice of the execution for attachment and sale of his property. It is very salutary that a person's property cannot be sold without his being told that it is being so sold and given an opportunity to offer his estimate as he is the person who intimately knew the value of his property and prevailing in the locality, exaggeration may at time be possible. In Rajagopal Iyer v. Ramachandra Iyer , the Full Bench held that a sale without notice under Order 21 Rule 22 is a nullity and is void and that it has not got to be set aside. If an application to set aside such a void sale is made it would fall under Section 47.
10. Above discussion do indicate discernible rule that service of notice on the judgment debtor is a fundamental part of the procedure touching upon the jurisdiction of the Execution Court to take further steps to sell his immovable property. Therefore, notice under Order 21 Rule 66(2), unless proviso is applied (if not already issued under Order 21 Rule 22), and service is mandatory. It is made manifest by Order 21 Rule 54(1A) brought on statute by 1976 Amendment Act with peremptory language that before settling the terms of the proclamation of sale. The omission thereof renders the further action and the sale in pursuance thereof void unless the judgment debtor appears without notice and thereby waives the service of notice. (See also. Mahakal Automobiles (M/S) and another Vs. Kishan Swaroop Sharma Sharma, 2008 (26) LCD 1525 )
Reverting to the facts of the instant case, it is not in dispute that when the revisionist failed to satisfy the decree passed against him, the executing court attached his property and put to auction, fixed 12.05.2006 for the said purpose. However, on 09.05.2006, an application under Section 151 CPC moved on behalf of the revisionist, tendering the sum of Rs. 12526/- by way of draft and cheque of Rs. 40,000/- i.e. the decretal amount.
On the said application, on 12.05.2006 (forenoon) the executing court has passed an order, reads as under:-
"प्रस्तुत प्रार्थना पत्र विपक्षी की ओर से इस आशय के साथ दिया गया है कि जो प्रार्थना पत्र के साथ १२५२६/- रूपये का ड्राफ्ट तथा ४०,०००/- रूपये का चेक दी० ८-५-०६ को प्रस्तुत किया गया है इस प् डिग्रीदार ने आपत्ति कि थी चेक का भुगतान होने में कठिनाई हो सकती है तथा उसके खाते में ऐसा भी हो सकता है कि इतनी धनराशि न हो | इस बात को दृष्टिगत रखते हुये मूल चेक व् मूल ड्राफ्ट डिक्रीहोल्डर के अधिवक्ता ने इस उद्देश्य से प्राप्त कराया कि वह सात दिन के अंदर इसके भुगतान के सन्दर्भ में भुगतान यदि प्राप्त हो सकता है तो न्यायलय को सूचित करें, यदि भुगतान नहीं होता है तो प्रार्थना पत्र आपत्ति व् निस्तारण हेतु दि० १९-५-०६ को पेश हो |"
It is also not in dispute between the parties that in pursuance of the order dated 12.05.2006, the draft and cheque received by learned counsel appearing on behalf of decree-holder handed over to him (Sri Rajendra Kumar Sharma) who deposited the draft and cheque in his account in the bank (Vijaya Bank), encashed, thereafter no objection has been filed as per order dated 12.05.2006 on the next date (i.e. 19.05.2006) that the decretal amount has not been paid, so keeping in view the said facts, the core question to be considered in the present case whether in view of the said facts, the auction conducted on 12.05.2006 (afternoon/2.30 p.m.) ) by which property, sold for Rs. 1,60,000/- in favour of auction-purchaser/Sri Prem Kumar Garg is a correct exercise or not.
Calcutta High Court in the case of Smt. Arati Dav Vs. Pradip Roy Chowdhury and others, AIR 2003 Calcutta 218, held as under:-
"In the facts and circumstances of the present case, this Court, therefore, should not hesitate to set aside the alleged auction sale which has been vitiated by fraud in order to do justice to the judgment debtor avoiding protracted litigation.
74. Thus, in my view, this Court even after detection of the serious irregularities and illegalities in holding the auction sale by the Executing Court and particularly after establishment of fraud on Court in course of holding the said auction sale of the property of the judgment debtor in execution of the decree cannot allow the party to go before the trial Court for final decision on the application filed under Order 21, Rule 90.
75. After detection of the aforesaid illegalities in conducting the auction sale this Court cannot permit the said sale to stand even for a moment as in that event the same would cause grave injustice to the judgment debtor. When fraud on Court has been established this Court cannot shut its eyes and remain as a silent spectator. The Court must come forward to undo the wrong by setting aside the illegal and irregular Court sale in order to do substantial justice. This Court being the Superior Court has the duty and obligation to rise to the occasion in order to do substantial justice to the parties."
Further, the sale of property in a court auction is a serious matter and lot of sanctity is attached to it. The court must therefore examine whether property which is to be put up for auction, has been sold in proper manner, in accordance with law. In the instant case, as it is not in dispute between learned counsel for the parties that as per the order dated 12.05.2006 passed by executing court, the decretal amount by way of draft and cheque has been handed over to the counsel of the decree-holder and seven days time was granted to inform the court if the amount is paid and if not paid, then to file an objection and for disposal of the matter 19.05.2006 has been fixed for the said purpose. Admittedly, on or before the said date, the decrtal amount has been received/deposited in the account of the decree-holder in his bank and no objection has been filed by him (Rajendra Kumar Sharma) as per order dated 12.05.2006, so in this circumstances, there is a serious material illegality in the auction which vitiate the auction, because once decree has already been satisfied as per the order dated 12.05.2006 passed by the executing court, the same cannot be again executed, as such the auction vitiates and if the same is done, the court must come forward to undo the wrong by setting aside illegality and irregularity in the auction proceeding, to do a substantial justice.
Thus, keeping in view the abovesaid facts as well as the fact that in spite of the service of the notice in the present case, decree holder does not turn up to contest the matter, so the interest of justice requires that the auction so held in the present case liable to be set aside.
Even otherwise in the instant matter, in order to satisfy the decretal amount of Rs. 52526/- the executing court had attached the property of revisionist/Sri Amit Kumar ( house No. 5/162 Vinay Khand, Gomti Nagar, Lucknow) having area of 3152 sq. ft. which is much higher value in comparison to the decretal amount. The said action on the part of executing court beside being contrary to the provisions of Order XXI Rule 64 CPC is also in contravention to the law as laid down by Hon'ble the Apex Court in the case of Mahakal Automobiles (M/S) (Supra) and by this Court in the case of Hari Shankar Prasad Vs. IInd Addl. District Judge, Azamgarh & Ors., 2007 (2) JCKR 8 (All.) and in the case of Abdul Hafeez Khan alias Chakkan Vs. Civil Judge, Pilibhit & Ors., 2009 (2) JCLR 557 (All).
For the foregoing reasons, the order dated 26.11.2009 passed by Additional District Judge, Court No. 10, Lucknow in Execution Case No. 1 of 2002 is set aside, the revision is allowed. At this stage, Sri Shashi K. Sinha, learned counsel appearing on behalf of auction-purchaser prays for and is permitted to move an application for withdrawal of the amount which auction purchaser deposited for purchase of the property in question for which auction took place on 12.05.2006 in accordance with law.
Order Date :- 2.12.2014
Print Page
ALLAHABAD HIGH COURT
Case :- CIVIL REVISION No. - 145 of 2009
Revisionist :- Amit Kumar S/O Late V.P. Ram
Opposite Party :- Prem Kumar Garg S/O Panna Lal Garg & Anr.
CITATION;AIR 2015(NOC)885ALL
Hon'ble Anil Kumar,J.
Heard Sri S.M.K. Chaudhary, Senior Advocate assisted by Sri Adnan Ahmad, learned counsel appearing on behalf of revisionist, Sri Shashi K. Sinha, learned counsel appearing on behalf of auction purchaser and perused the record.
Sri Rajendra Kumar Sharma is the owner of the property situated at 1/107, Vijay Khand, Gomti Nagar, Lucknow (hereinafter referred as premisses in question) and Sri Amit Kumar/revisionist is tenant.
In the year 1999, landlord/Rajendra Kumar Sharma filed a suit registered as S.C.C. Suit No. 51 of 1999, for ejectment, rent and damages against the revisionist. During the pendency of the same, the premises was vacated by the revisionist and the possession given to landlord.
Thereafter by an order dated 29.01.2002, the suit was decreed for rent and dues for as Rs. 39000/- arrears and Rs. 13526 as electricity Bill /- against Sri Amit Kumar/revisionist. As the decree passed in the SCC suit has not been satisfied, so the landlord/Rajendra Kumar Sharma/decree-holder filed an execution Case No. 01/2002 (Rajendra Kumar Sharma Vs. Amit Kumar). In spite of the service of the notice in the execution case, the revisionist/Amit Kumar has not put his appearance, as such on 19.10.2005, property of Sri Amit Kumar at house No. 5/162 Vinay Khand, Gomti Nagar, Lucknow having area of 3,152 sq. ft. (hereinafter referred to as the property) has been attached and on 21.10.2005 notice of attachment was affixed on the property.
On 09.05.2006, the judgment-debtor moved an application under section 151 CPC thereby tendering a sum of Rs. 12526/- by bank draft and cheque of Rs. 40,000/- in order to satisfy the decree, the same was considered/adjudicated by executing Court on 12.05.2006 (forenoon) an order has been passed by which the said amount has been handed over to the counsel for decree-holder, with a direction to file reply if the same is encashed within seven days and if not, objection be filed, fixed the matter for disposal on 19.05.2006, however, on the same day, in the afternoon (at 2.30 p.m.), the auction of the property took place and Sri Prem Kumr Garg/O.P. No. 1 has purchased the same for a sum of Rs. 1,60,000/-, deposited Rs. 40,000/- i.e. 1/4th of the auction money plus Rs. 3200/- as poundage money with the authority concerned conducting the auction.
Aggrieved by the same, an application under Order 21 Rule 89 CPC has been moved on behalf of the judgment-debtor/revisionist for setting aside the sale, and executing court by order dated 24.05.2006 set aside the sale. The said order has been challenged by the auction purchaser by filing a Revision No. 131 of 2006 (Prem Kumar Garg Vs. Rajendra Kumar Sharma and another), allowed by order dated 28.04.2008, relevant portion quoted as under:-
"As it appears from the facts, before the sale, an application dated 27.04.2006 was filed along with a Bank Draft of Rs. 12526/- and four cheques of the dates subsequent to the date of the sale. The court did not recall warrant for subsequent to the date of sale. Tehrefore, the sale was held as scheduled on 12.05.2006 in presence of the decree-holder.
After the sale, the judgment-debtor moved an application under Order 21 Rule 89 of the Code of Civil Procedure for cancellation of the sale. In the said applcation also he referred the same faacts regarding payment of the decretal amount as were incorporated in the applciation datd 27.04.2006. The execution court on that very date without affording any opportunity of hearing to the applicant in a most causal and arbitrary manner wihtout looking the Order 21 Rule 89 as well cancelled the sale and struck off the execution.
Order 21 Rule 89 of the Code of Civil Procedure in case of cancellation of sale certain amount is required to be paid to the purchaser. Since the entire decretal amount was not paid prior to the sale of the property and an application was moved subsequent to the sale under Order 21, Rule 89 the passing of the order without compliance of the requirement of the provisions of Order 21 Rule 89 was wrong.
It view of the above, the order of the execution court is clearly erroneous and deserves to be set aside.
The revision is, therefore, allowed and the order dated 24.05.2006 is hereby set aside. The matter is sent back to the execution court to decide the application afresh in the light of Order 21, Rule 89 C.P.c. in accordance with law."
Thereafter, the matter has come up for consideration before the executing court and by an order dated 26.11.2009, the application moved by judgment-debtor/revisionist under Order 21 Rule 89 has been rejected.
In view of the said factual background, present revision has been filed by the judgment-debtor/revisionist under Section 25 of the Provincial Small Cause Court Act, 1887 before this Court.
Sri S.M.K. Chaudhary, learned senior counsel appearing on behalf of revisionist while challenging the impugned order submits that once the decretal amount tendered by the judgment-debtor/revisionist by way of bank draft amounting to Rs. 12526/- and cheque of Rs. 40,000/- accepted by the counsel for the decree holder as per order on 12.05.2006 passed by executing court seven days time is granted to file an objection and fixed 19.05.2006 for disposal, thereafter, the decree holder has deposited the said bank draft/cheque in his bank account (Vijaya Bank) and the same has been credited, so the decree against the revisionist stood satisfied, as such, the auction of the property is nullity, liable to be set aside.
Next argument advanced by learned senior counsel appearing on behalf of revisionist that in the present case, the property is situated in the Gomti Nagar one of the posh area of the city of the Lucknow, so the value of the property is much more high in comparison to the amount for which it has been auctioned in order to satisfy the decree holder, so the auction in question is liable to be set aside.
Sri Shashi K. Sinha, learned counsel for auction-purchaser, submits that in the present case, when the judgment-debtor/revisionist failed to satisfy the decree passed against him in SCC Suit No. 51 of 1999 and the landlord/decree holder has filed an execution Case No. 1 of 2002 in which property of the judgment-debtor/revisionist has been attached, sale proclamation issued, thereafter, the auction took place in which and his client/Prem Kumar Garg has purchased the same, so keeping in view the said facts as well as finding given by the court below while rejecting the petitioner's application under Order 21 Rule 89 CPC, the auction is perfectly valid as that the judgment-debtor/revisionist has failed to satisfy the decree, as such no interference is need in the instant matter because auction-purchaser after purchasing the property in open auction for a sum of Rs. 1,60,000/- deposited 1/4th amount i.e. Rs. 40,000/- and Rs. 3200/- as poundage money on 12.05.2006 thereafter, the remaining amount of Rs. 1,20,000/- also deposited on 17.12.2009.
He further argued that in the present case, this Court on 28.04.2008 in a revision No. 131 of 2006 (Prem Kumar Garg Vs. Rajendra Kumar Sharma) has given a finding that "Order 21 Rule 89 of the Code of Civil Procedure in case of cancellation of sale cetain amount is required to be paid to the purchaser. Since the entire decretal amount was not paid prior to the sale of the property and an application was move dsubsequent to the sale under Order 21, Rule 89 the passing of the order without compliance of the requirement of the provisions of Order 21 Rule 89 was wrong, so keeping in view the said facts, there no illegality or infirmity in the order been passed by the court below,liable to be dismissed.
I have heard learned counsel for parties and gone through the record.
When the property is put for auction to satisfy a decree of the court, it is mandatory for the court executing the decree, to comply the following stages before the property if sold on an auction for a particular decree:-
(a) An attachment of the immovable property
(b) Proclamation of sale by auction.
(c) Sale by public auction.
Each stage of the sale is governed by the provisions of Code of Civil Procedure and in this regard, the Hon'ble Apex Court in the case of Desh Bandhu Gupta Vs. N.L. Ananad & Rajinder Singh, (1994) 1 SCC 131, has laid down the procedure for sale of a property and the principle which has to be kept in mind by a court while deciding issue in question, relevant portion quoted as under:-
"However, there is considerable force in the contention of the appellant that the procedure prescribed under Order 21 Rule 66 was flagrantly violated by the Executing Court. We have already noted the order of the court to conduct the Sale. For judging its legality and validity, it would be desirable to have a bird's eye view of the procedure for sale of immovable property in execution. On an application for execution filed under Order 21 Rule 5 the court shall ascertain the compliance of the pre-requisites contemplated under Rule 17 and on finding the application in order, it should be admitted and so to make an order, thereon to issue notice under Rule 22, subject to the conditions specified therein. If a notice was served on the judgment debtor as enjoined under Order 5 but he did not appear or had not shown cause to the satisfaction of the court, under Rule 23 the court "shall order the decree to be executed". If an objection is raised to the execution of the decree, by operation of Sub-rule (2) thereof, "the court shall consider such objections and makes such order as it thinks fit". Thereafter in the case of a decree for execution against immovable property and attachment under Rule 54 should be made by an order prohibiting the judgment debtor from transferring or creating encumbrances on the property. Under Rule 64 the court may order sale of the said property. Under Rule 68(2) proclamation of sale by public auction shall be drawn up in the language of the court and it should be done after notice to the decree holder and the judgment debtor and should state "the time and place of sale" and "specified as fairly and accurately as possible" the details specified in Clauses (a) to (d) of Sub-rule (2) thereof. The Civil Rules of practice in Part L in the Chapter 12 framed by the High Court of Delhi 'Sale of Property and Delivery to the Purchaser' Rule 2 provides that whenever a court makes an order for the sale of any attached property under Order 21, Rule 64, it shall fix a convenient date not being distant more than 15 days, for ascertaining the particulars specified in Order 21 Rule 66(2) and settling the proclamation of sale. Notice of the date so fixed shall be given to the parties or their pleaders,. In Rule 4 captioned 'Settlement of Proclamation of sale, estimate of value' it is stated that on the day so fixed, the court shall, after perusing the documents, if any, and the report referred to in the proceeding paragraph, after examining the decree holder and judgment debtor, if present, and after making such further enquiry as it may consider necessary, settle the proclamation of sale specifying as clearly and accurately as possible the matters required by Order 21 Rule 66(2) of the Code. The specifications have been enumerated in the rule itself. The proclamation for sale is an important part of the proceedings and the details should be ascertained and noted with care. This will remove the basis for many a belated objections to the sale at a later date. It is not necessary to give any proclamation of sale the estimate of the value of the property. The proclamation when settled shall be signed by the Judge and get it published in manner prescribed by Rule 67. The court should authorise its officers to conduct sale. Under Rule 68 the sale should be conducted at "the place and time" specified or the time may be modified with the consent in writing of the judgment debtor. The proclamation should include the estimate, if any, given by either JD or DH or both the parties. Service of notice on Judgment debtor under Order 21 Rule 66(2), unless waived by appearance or remained ex parte, is a fundamental step in the procedure of the court in execution. J.D. should have an opportunity to give his estimate of the property. The estimate of the value of the property is a material fact to enable the purchaser to know its value. It must be verified as accurately and fairly as possible so that the intending bidders are not misled or to prevent them from offering inadequate price or to enable them to make a decision in offering adequate price. In Gajadhar Prasad and Ors. v. Babu Bhakta Ratan and Ors. MANU/SC/0013/1973 : [1974]1SCR372 , this Court, after noticing the conflict of judicial opinion among the High Courts, held that a review of the authorities as well as the amendments to Rule 66(2)(e) make it abundantly clear that the court, when stating the estimated value of the property to be sold, must not accept merely the ipse dixit of one side. It is certainly not necessary for it to state its own estimate. If this was required, it may, to be fair, necessitate insertion of something like a summary of a judicially considered order, giving its grounds, in the sale proclamation, which may confuse bidders. It may also be quite misleading if the court's estimate is erroneous. Moreover, Rule 66(2)(e) requires the court to state only nature of the property so that the purchaser should be left to judge the value for himself. But, the essential facts which have a bearing on the very material question of value of the property and which could assist the purchaser in forming his own opinion must be stated, i.e. the value of the property, that is, after all, the whole object of Order 21, Rule 66(2)(e), CPC. The court has only to decide what are all these material particulars in each case. We think that this is an obligation imposed by Rule 66(2)(e). In discharging it, the court should normally state the valuation given by both the decree holder as well as the judgment debtor where they both have valued the property, and it does not appear fantastic. It may usefully state other material facts, such as the area of land, nature of rights in it, municipal assessment, actual rents realised, which could reasonably and usefully stated succinctly in a sale proclamation has to be determined on the facts of each particular case. Inflexible rules are not desirable on such a question. It could also be angulated from another perspective. Sub-rule (1) of Rule 66 enjoins the Court that the details enumerated in Sub-rule (2) shall be specified as fairly and accurately as possible. The duty to comply with it arises only after service of the notice on the judgment-debtor unless he voluntarily appears and given opportunity in the settlement of the value of the property. The absence of notice causes irremedial injury to the judgment debtor. Equally publication of the proclamation of sale under Rule 67 and specifying the date and place of sale of the property under, Rule 66(2) are intended that the prospective bidders would know the value so as to make up their mind to offer the price and to attend at sale of the property and to secure competitive bidders and fair price to the property sold. Absence of notice to the judgment debtor disables him to offer his estimate of the value who is better known of its value and to publicise on his part canvassing and bringing the intending bidders at the time of sale. Absence of notice prevents him to do the above and also disables him to know fraud committed in the publication and conduct of sale or other material irregularities in the conduct of sale. It would be broached from yet another in the year 2001 to decide theangle. The compulsory sale of immovable property under Order 21 divests right, title and interest of the judgment debtor and confers those rights, in favour of the purchaser. It thereby deals with the rights and disabilities either of the judgment debtor or the decree holder. A sale made, therefore, without notice to the judgment debtor is a nullity since it divests the judgment debtor of his right, title and interest in his property without an opportunity. The jurisdiction to sell the property would arise in a court only where the owner is given notice of the execution for attachment and sale of his property. It is very salutary that a person's property cannot be sold without his being told that it is being so sold and given an opportunity to offer his estimate as he is the person who intimately knew the value of his property and prevailing in the locality, exaggeration may at time be possible. In Rajagopal Iyer v. Ramachandra Iyer , the Full Bench held that a sale without notice under Order 21 Rule 22 is a nullity and is void and that it has not got to be set aside. If an application to set aside such a void sale is made it would fall under Section 47.
10. Above discussion do indicate discernible rule that service of notice on the judgment debtor is a fundamental part of the procedure touching upon the jurisdiction of the Execution Court to take further steps to sell his immovable property. Therefore, notice under Order 21 Rule 66(2), unless proviso is applied (if not already issued under Order 21 Rule 22), and service is mandatory. It is made manifest by Order 21 Rule 54(1A) brought on statute by 1976 Amendment Act with peremptory language that before settling the terms of the proclamation of sale. The omission thereof renders the further action and the sale in pursuance thereof void unless the judgment debtor appears without notice and thereby waives the service of notice. (See also. Mahakal Automobiles (M/S) and another Vs. Kishan Swaroop Sharma Sharma, 2008 (26) LCD 1525 )
Reverting to the facts of the instant case, it is not in dispute that when the revisionist failed to satisfy the decree passed against him, the executing court attached his property and put to auction, fixed 12.05.2006 for the said purpose. However, on 09.05.2006, an application under Section 151 CPC moved on behalf of the revisionist, tendering the sum of Rs. 12526/- by way of draft and cheque of Rs. 40,000/- i.e. the decretal amount.
On the said application, on 12.05.2006 (forenoon) the executing court has passed an order, reads as under:-
"प्रस्तुत प्रार्थना पत्र विपक्षी की ओर से इस आशय के साथ दिया गया है कि जो प्रार्थना पत्र के साथ १२५२६/- रूपये का ड्राफ्ट तथा ४०,०००/- रूपये का चेक दी० ८-५-०६ को प्रस्तुत किया गया है इस प् डिग्रीदार ने आपत्ति कि थी चेक का भुगतान होने में कठिनाई हो सकती है तथा उसके खाते में ऐसा भी हो सकता है कि इतनी धनराशि न हो | इस बात को दृष्टिगत रखते हुये मूल चेक व् मूल ड्राफ्ट डिक्रीहोल्डर के अधिवक्ता ने इस उद्देश्य से प्राप्त कराया कि वह सात दिन के अंदर इसके भुगतान के सन्दर्भ में भुगतान यदि प्राप्त हो सकता है तो न्यायलय को सूचित करें, यदि भुगतान नहीं होता है तो प्रार्थना पत्र आपत्ति व् निस्तारण हेतु दि० १९-५-०६ को पेश हो |"
It is also not in dispute between the parties that in pursuance of the order dated 12.05.2006, the draft and cheque received by learned counsel appearing on behalf of decree-holder handed over to him (Sri Rajendra Kumar Sharma) who deposited the draft and cheque in his account in the bank (Vijaya Bank), encashed, thereafter no objection has been filed as per order dated 12.05.2006 on the next date (i.e. 19.05.2006) that the decretal amount has not been paid, so keeping in view the said facts, the core question to be considered in the present case whether in view of the said facts, the auction conducted on 12.05.2006 (afternoon/2.30 p.m.) ) by which property, sold for Rs. 1,60,000/- in favour of auction-purchaser/Sri Prem Kumar Garg is a correct exercise or not.
Calcutta High Court in the case of Smt. Arati Dav Vs. Pradip Roy Chowdhury and others, AIR 2003 Calcutta 218, held as under:-
"In the facts and circumstances of the present case, this Court, therefore, should not hesitate to set aside the alleged auction sale which has been vitiated by fraud in order to do justice to the judgment debtor avoiding protracted litigation.
74. Thus, in my view, this Court even after detection of the serious irregularities and illegalities in holding the auction sale by the Executing Court and particularly after establishment of fraud on Court in course of holding the said auction sale of the property of the judgment debtor in execution of the decree cannot allow the party to go before the trial Court for final decision on the application filed under Order 21, Rule 90.
75. After detection of the aforesaid illegalities in conducting the auction sale this Court cannot permit the said sale to stand even for a moment as in that event the same would cause grave injustice to the judgment debtor. When fraud on Court has been established this Court cannot shut its eyes and remain as a silent spectator. The Court must come forward to undo the wrong by setting aside the illegal and irregular Court sale in order to do substantial justice. This Court being the Superior Court has the duty and obligation to rise to the occasion in order to do substantial justice to the parties."
Further, the sale of property in a court auction is a serious matter and lot of sanctity is attached to it. The court must therefore examine whether property which is to be put up for auction, has been sold in proper manner, in accordance with law. In the instant case, as it is not in dispute between learned counsel for the parties that as per the order dated 12.05.2006 passed by executing court, the decretal amount by way of draft and cheque has been handed over to the counsel of the decree-holder and seven days time was granted to inform the court if the amount is paid and if not paid, then to file an objection and for disposal of the matter 19.05.2006 has been fixed for the said purpose. Admittedly, on or before the said date, the decrtal amount has been received/deposited in the account of the decree-holder in his bank and no objection has been filed by him (Rajendra Kumar Sharma) as per order dated 12.05.2006, so in this circumstances, there is a serious material illegality in the auction which vitiate the auction, because once decree has already been satisfied as per the order dated 12.05.2006 passed by the executing court, the same cannot be again executed, as such the auction vitiates and if the same is done, the court must come forward to undo the wrong by setting aside illegality and irregularity in the auction proceeding, to do a substantial justice.
Thus, keeping in view the abovesaid facts as well as the fact that in spite of the service of the notice in the present case, decree holder does not turn up to contest the matter, so the interest of justice requires that the auction so held in the present case liable to be set aside.
Even otherwise in the instant matter, in order to satisfy the decretal amount of Rs. 52526/- the executing court had attached the property of revisionist/Sri Amit Kumar ( house No. 5/162 Vinay Khand, Gomti Nagar, Lucknow) having area of 3152 sq. ft. which is much higher value in comparison to the decretal amount. The said action on the part of executing court beside being contrary to the provisions of Order XXI Rule 64 CPC is also in contravention to the law as laid down by Hon'ble the Apex Court in the case of Mahakal Automobiles (M/S) (Supra) and by this Court in the case of Hari Shankar Prasad Vs. IInd Addl. District Judge, Azamgarh & Ors., 2007 (2) JCKR 8 (All.) and in the case of Abdul Hafeez Khan alias Chakkan Vs. Civil Judge, Pilibhit & Ors., 2009 (2) JCLR 557 (All).
For the foregoing reasons, the order dated 26.11.2009 passed by Additional District Judge, Court No. 10, Lucknow in Execution Case No. 1 of 2002 is set aside, the revision is allowed. At this stage, Sri Shashi K. Sinha, learned counsel appearing on behalf of auction-purchaser prays for and is permitted to move an application for withdrawal of the amount which auction purchaser deposited for purchase of the property in question for which auction took place on 12.05.2006 in accordance with law.
Order Date :- 2.12.2014
No comments:
Post a Comment