Heard Sri Shashi Nandan learned Senior Counsel along with Sri Vijay Prakash for the petitioner, Sri Manish Tiwari for the respondent no. 1 - decree holder and Sri S.K. Shukla for the auction purchaser - respondent no. 2. The dispute falls within a very short campus in this petition which assails the order passed by the court below rejecting the application moved by the petitioner for consigning the execution proceedings in Execution Case No. 44 of 2004. Learned counsel for the parties agree that the petition be disposed of finally as no further affidavits are necessary, the issue involved being purely legal.
The background in which the said application came to be moved is that the property in dispute became subject matter of attachment during execution proceedings on 10th March, 2005. The petitioner is stated to have purchased the property from the judgment-debtor on 12th January, 2006. In between the attached property was put to auction which took place on 19th October, 2006 in which the respondent no. 2 alleges to have purchased the property. Immediately thereafter, upon making the deposits on 15th November 2006, the petitioner moved an application on 21st November 2006 under Order XXI Rule 89 C.P.C., praying for setting aside the sale which was numbered as Application No. 3-C. Objections were filed to the said application by the decree holder and the auction purchaser both, confined only to locus of the petitioner to move the said application. The said objections were heard and ultimately the application filed by the petitioner came to be allowed on 7th August, 2007. The decree holder and the auction purchaser both filed revisions against the said order dated 7th August, 2007 before this Court. The revision filed by Sanjai Batra the auction purchaser was numbered as Civil Revision No. (12) of 2008 which was dismissed as withdrawn by the following order:-
"BY THE COURT After the matter was heard for some time, learned counsel appearing for the applicant made a prayer to dismiss the instant revision as withdrawn in as much as the same is not maintainable.
Prayer made is allowed.
Revision stands dismissed as withdrawn.
Dt/-122.2008 Sd/-Krishna Murari,J."
The revision filed by the respondent no. 1 decree holder was dismissed on 14th July, 2009 by the following order:-
"Hon'ble Devi Prasad,J.
The revisionist has purchased a property which is subject matter of execution proceeding. The respondent has filed an objection which was opposed by the revisionist. Learned trial Court has recorded a finding that in view of the provision contained in Order XXI Rule 89 CPC, any person having interest in the property in dispute shall have right to file objection. The objection filed by the respondent as Paper No.3-Ga has been accepted by the learned Civil Judge (Senior Division), Ghaziabad.
The order does not seem to suffer from any impropriety or illegality.
The revision is devoid of merit. It is accordingly dismissed."
The respondent no. 1 who is the decree holder assailed the order of this Court before the apex court in Special Leave Petition No. 7732 of 2010. The said S.L.P. was dismissed observing that the petitioner may raise objections that may be available to him in law. The order passed by the apex court is reproduced herein under:-
"Delay condoned.
The Special Leave Petition is dismissed.
However, we request the Trial Court to dispose of the pending proceedings as expeditiously as possible, preferably within six months from today.
It is needless to observe that the petitioner is entitled to raise all the objections as may be available to him in law."
The petitioner moved an application for consigning the proceedings to records in view of the fact that the application filed by him under Order XXI Rule 89 C.P.C. had already been allowed, which application came to be contested, whereafter the order came to be passed on 11th March, 2011 holding that the application under Order XXI Rule 89 CP.C. had not been decided on merits and was only an acceptance of the locus of the petitioner to move the application under Order XXI Rule 89 C.P.C.
The petitioner came up before this Court in Civil Misc. Writ Petition No. 18951 of 2011 which was disposed of by the following order dated 1st April, 2011:-
"Hon'ble Rajes Kumar,J.
Heard Sri Neeraj Tripathi, learned counsel for the petitioner and learned Standing Counsel.
Learned counsel for the petitioner submitted that the petitioner had purchased the property in dispute from judgment debtor. In pursuance of the decree, the property was put to auction on 19.10.2006. The petitioner moved an application under Order XXI Rule 89 C.P.C. for setting aside the auction after complying with the necessary requirement. The said application has been allowed on 07.08.2007, which is annexure-7 to the writ petition. The petitioner moved an application before the court below that when the application under Order XXI Rule 89 C.P.C. has been allowed, no further order is required and, therefore, the file pertaining to the case no.256 of 2006 be consigned to record. On the said application, the trial court has passed the impugned order dated 11.03.2011 wherein it has been held that the said application has not been decided on merit for which 25.03.2011 has been fixed. He further submitted that once the application under Order XXI Rule 89 C.P.C. has been allowed, there is no justification to hear the application on merit again.
In view of the aforesaid facts and circumstances, the court is of the view that let the petitioner may file a fresh application before the court below taking all the pleas which have been taken in the writ petition disputing the further decision on merit on the application under 21 Rule 89 C.P.C. In case, if the petitioner files any application within a period of two weeks, the trial court is directed to dispose of the said application after giving opportunity of hearing to all concerned parties within another period of two months before proceeding with the case further by a reasoned order.
For a period of ten weeks, the impugned order dated 11.03.2011 passed in Misc. Case No.256 of 2006 (Apurva Jindal Vs. Amit Kumar Kubba and others) shall be kept in abeyance and shall be subject to the fresh order which will be passed.
The writ petition stand disposed of.
Order Date :- 1.4.2011"
Consequently a detail application was again moved by the petitioner and the same has again been rejected on the ground that the matter is yet to be decided on merits relating to the setting aside of the sale and therefore the same will be heard further on 30th September, 2011. Aggrieved, the petitioner is before this Court praying for quashing of the said order and for a direction that the court may proceed keeping itself confined to the request of consigning the records made on behalf of the petitioner.
Sri Shashi Nandan submits that the approach of the court below is absolutely erroneous, inasmuch as, no objections to the application moved under Order XXI Rule 89 C.P.C. had been made by the opposite parties except for raising an objection to the locus of the petitioner and in this view of the matter the application which has been allowed on 7th August, 2007 will be presumed to have accepted the prayer of setting aside the sale. A mere formality of passing a formal order remains. There is no occasion for the court to now proceed to hear the entire matter on merits as observed in the impugned order. It is further submitted that so far as the respondent no. 2 -auction purchaser is concerned, his revision filed before this Court against the order dated 7th August, 2007 had been dismissed as withdrawn, and therefore he will be presumed to have abandoned any future claim in the matter.
It is further contended that the court below has misconstrued the observations made by this Court in the judgment dated 1st April, 2011 and has committed the same error and in effect the sale has to be set aside which the court is obliged to do in view of the law laid down by the apex court in the case of Challamane Huchha Gowda Vs. M.R. Tirumala & another, 2004 ACJ 683 (Paras 9 and 10). He has further invited the attention of the court to the Full Bench decision of the Madras High Court in the case of L.A. Krishna Ayyar Vs. Arunachalam Chettiar, reported in AIR 1935 Madras Pg. 842 and the Division bench judgment of this Court in the case of Moolchand Vs. Bishwanath Prasad Tilbha Deshwar & others, reported in 1962 ALJ 735.
Sri Shashi Nandan has further laid stress on the words used in Rule 89 of Order XXI read with Rule 92(2) of Order XXI to contend that in the absence of any objections which could have been possibly made, there is no option for the court except to pass an order for setting aside the sale which in effect has already been done in the order dated 7th August, 2007.
Replying to the said submissions on behalf of the petitioner, learned counsel for the respondents contends that the order dated 7th August, 2007 makes it clear that the matter has to be heard on the issue relating to the setting aside of the sale and it is for the said purpose that the court while proceeding to pass the order on 7.8.2007 had observed that the file shall be placed alongwith the records of the main execution proceedings in Execution Case No. 44 of 2004 for further hearing. He therefore submits that the petitioner cannot be permitted to pre-empt this part of the action of the court. The answering respondents are also entitled to raise their objections in relation to the aspect of setting aside the sale. He therefore contends that the impugned order does not suffer from any infirmity and hence does not require any interference by this Court.
Having heard learned counsel for the parties it would be appropriate to gainfully reproduce Rules 89 and 92 of Order XXI for the purpose of this case:-
"89. Application to set aside sale on deposit (1) Where immovable property has been sold in execution of a degree, 1[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 deposition 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.
92. Sale when to become absolute or be set aside.
(1) When no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute:
1[Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection.] (2) Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within 2[sixty days] from the date of sale, 3[or in cases where the amount deposited under rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale]:
Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.
2[Provided further that the deposit under this sub-rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002.] (3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.
3[(4) Where a third party challenges the judgment-debtor's title by filing a suit against the auction-purchaser, the decree-holder and the judgment-debtor shall be necessary parties to the suit.
3(5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree-holder to refund the money to the auction-purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the Court directs, be revived at the stage at which the sale was ordered.]"
A perusal of the said provisions makes it clear that a person who claims an interest in the property is entitled to move an application for setting aside the sale. This part of the issue already stands concluded in favour of the petitioner by the orders which have been passed by this Court and culminating under the order passed by the apex court. The petitioner therefore has an interest in the property and therefore entitled to make a prayer for the passing of an order in relation to the setting aside of the sale.
The contention seems to be narrowed down between the parties on the issue as to what should be the extent of the enquiry which can be made by the court while proceeding to pass such an order. This Court is of the opinion that in view of the provisions of sub-rule (2) of Rule 92, the order has to be passed by the court for setting aside the sale on the requirements as indicated therein, read with requirements of Rule 89 on their being complied with. This therefore requires the passing of an order after applying mind to the ingredients that are required to be examined in terms of Rule 89 and Rule 92 as indicated hereinabove. In view of this, the contention raised on behalf of the petitioner that the sale will be presumed to have been set aside under the Order dated 7th August, 2007 does not appear to be correct, inasmuch as, an order under the aforesaid provisions has to be passed by the court concerned. The issue relating to the enquiry to be made is being apprehended by the petitioner to be a full scale enquiry on the merits of the claim of the petitioner. This apprehension in my opinion is misplaced, inasmuch as, the enquiry which has to be made is only confined to the provisions of Rule 89 and Rule 92 and not beyond that. The order has to be passed and to that extent the court is obliged to pass an order in view of the decision relied upon by the learned counsel for the petitioner in the case of Challamane Huchha Gowda Vs. M.R. Tirumala & another, reported in 2004 ACJ 683 where the apex court has observed as under:-
"Because the purpose of Rule 21 is to ensure the carrying out of the orders and decrees of the Court, once the judgment-debtor carries out the order or decree of the Court, the execution proceedings will correspondingly come to an end. It is to be noted that the Rule does not provide that the application in a particular form shall be filed to set aside the sale. Even a memo with prayer for setting aside sale is sufficient compliance with the said Rule. Therefore, upon the satisfaction of the compliance with conditions as provided under Rule 89, it is mandatory upon the Court to set aside the sale under Rule 92. And the Court shall set aside the sale after giving notice under Rule 99(2) to all affected persons."
It is therefore an obligation of the court to pass such an order as it is mandatory as observed by the Apex Court. The recital contained in the order dated 7th August, 2007 does not indicate that the court had formally passed an order for setting aside the sale which requirement has to be fulfilled for the passing of an order and therefore the writ petition stands disposed of with a direction to the court concerned to proceed to pass an order in accordance with law in the light of the observations made hereinabove within a period of two months from the date of presentation of a certified copy of this order before the court concerned.
Dt. 22.9.2011 Sahu