Heard learned counsel for the appellants and Sri M.S. Rathaur, learned counsel who has filed Vakalatnama on behalf of the respondents.
This is plaintiffs' second appeal. Original plaintiff Sri Sumer Singh since deceased and survived by appellant nos.2, 3 and 4 instituted O.S. No.283 of 1998 against Brij Mohan since deceased and survived by respondent nos.1/1 to 1/4. The relief claimed in plaint was for cancellation of auction sale dated 04.08.1997 held in execution of decree passed in an earlier suit i.e. O.S. No.35 of 1993 which had been decreed ex parte on 30.09.1993. In the said earlier suit the plaintiff-appellant was defendant. The earlier suit was decreed for recovery of Rs.31,689.95/- with 18% yearly interest. Thereafter, Execution Case No.21 of 1994 was filed by Brij Mohan-plaintiff decree holder of the said suit (defendant in the suit giving rise to the instant appeal). In the said execution case about one acre agricultural land of the plaintiff (judgment debtor in the execution proceedings) was auctioned and purchased by Brij Mohan the decree holder. It was stated in the plaint of the suit giving rise to the instant second appeal that in Execution Case No.21 of 1994, notice under Order 21, Rule 66 was issued to the plaintiff (judgment debtor in the said execution case) on 28.03.1997 which he did not get. The sale was also confirmed on 04.08.1997 (auction sale was held on 21.05.1997). The property was sold for about Rs.40,000/-.
The defendant pleaded that against the ex parte decree passed in the earlier suit plaintiff (who was defendant in the earlier suit) had filed restoration application under Order 9 Rule 13, CPC, which was allowed on payment of Rs.150/- as cost. However, the cost was not deposited hence restoration application was rejected. It was also pleaded that the land which was auctioned was already mortgaged with Bhumi Vikas Bank, Rasra, Ballia and with Central Bank, Rasra, Ballia and under order of the High Court, the defendant auction purchaser had to pay the loan of the plaintiff to the above banks and that thereafter auction purchaser had filed suit against the judgment debtor (plaintiff of the suit giving rise to the instant second appeal) for returning the mortgage amount which had been paid by him to the Bhumi Vikas Bank.
The main plea taken in the suit was that plaintiff was not given any notice either of the suit or of the execution proceedings.
The question as to whether the earlier suit was rightly decreed ex parte or not could not be raised in the subsequent suit (giving rise to the instant second appeal). In any case, it was amply proved that restoration application was allowed on payment of nominal cost which was not paid.
In the impugned judgment of the trial court, it was mentioned that the auction purchaser stated that he had purchased the property for about Rs.40,000/-. From the evidence available on the record the trial court held that proceedings for auction were properly conducted and people of the other villages had also participated in the auction that the ex parte decree was rightly passed and the suit was barred by Section 47, CPC. The lower appellate court further held that in the plaint, the plaintiff nowhere stated that against the ex parte decree he had filed restoration application which was allowed on payment of cost but the cost was not paid hence that order was recalled.
On two or three dates I tried to persuade the parties to compromise the matter. The precise suggestion was that as one of the arguments of the learned counsel for the appellants was that the land had been sold for highly inadequate consideration hence some more amount might be agreed to be paid by the respondents. Learned counsel for the respondents stated that circle rate at the relevant time was about Rs.60,000/- per acre and defendant not only purchased the land for about Rs.40,000/-, but had to pay Rs.9,600/- to Central Bank, Rasra also as the land was mortgaged with the said Bank also.
Learned counsel for the appellants has further argued that after holding that the suit was barred by Section 47, CPC, the courts below should not have decided the question of validity of auction. However, the Courts were required to decide the issue of validity of the auction, as it was the main point raised by the plaintiffs.
Learned counsel for the appellants has cited an authority of the Supreme Court reported in M/s Mahakal Automobiles Vs. Kishan Swaroop Sharma 2008 AIR SCW 2730 holding that notice to judgment debtor is necessary at every stage. In the said case attachment of the property and issuance of sale proclamation was done without notice to judgment debtor. In the instant case, notice was given to the judgment debtor in the execution.
I fully agree with the courts below. By virtue of Section 47 CPC, the suit was not maintainable. Section 47 CPC is quoted below:-
"Questions to be determined by the Court executing decree-(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
Explanation I.- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II.-(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section."
It could not be shown that notice was not given to the plaintiff before auction.
Regarding inadequacy of consideration no evidence was led by the plaintiffs/appellants. On the contrary, learned counsel for the respondents has been able to show that the sale consideration was not much inadequate. As auction sale often leads to lot of litigation, hence property is seldom sold for adequate market value in auction sale. In view of likelihood of litigation property in auction cannot be sold for as much price on which it may be sold by private negotiations. If the auction amount is so inadequate that it shocks the conscience of the Court then it may be taken as one of the grounds for setting aside the sale. However, in the instant case it is not so.
On the suggestion of the court learned counsel for the respondents on behalf of respondents has agreed that they will not take/pursue further any proceedings for recovery of Rs.9,600/- or interest thereupon which they had paid to Central Bank, Rasra on behalf of appellants. Paragraphs 5 and 5 of Additional written arguments dated 9.9.2011 filed by learned counsel for Respondents nos. 1, 3 and 4 are quoted below:-
5. That on the said date i.e. 25.8.2011 this Hon'ble Court was pleased to pass the following order:
"Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the parties again� learned counsel for the respondents on the suggestion/inquiry of the court has categorically stated that no steps for the recovery of the amount which auction purchaser paid to the Bank as the property which he purchased was mortgaged from the appellant will be taken by the auction purchaser. Judgment again reserved. List for delivery of judgment on 15.9.2011. Meanwhile, learned counsel for both the parties may file short written arguments.
Order Date :- 25.8.2011
6. That in respect of the aforesaid order passed by this Hon'ble Court it is most respectfully submitted that the said order does not reflect the amount of Rs.9,600/- deposited by respondents before Central Bank, Rasra, Ballia for which the consent/statement was given by the counsel for the respondents. As such it is most respectfully submitted that the aforesaid order may kindly be interpreted with regard to amount of Rs.9,600/- deposited by respondents before Central Bank Rasra only."
Accordingly, I do not find least error in the impugned judgment and decree which is confirmed. No question of law has been wrongly decided. The impugned findings do no suffer from any error of law. Second appeal is, therefore, dismissed under Order 41, Rule 11 CPC subject to the above concession made by learned counsel for respondents.
Order Date :- 29.9.2011 NLY