Mst. Kariman Bai v. Laxman Lal Ram Pratap — 1978 DIGILAW 25 (RAJ)

KUDAL J.—This revision petition is directed against the order of the learned District Judge, Kota dated 5th December, 1977. 2. At the time of arguments regarding the admission of the revision petition, Mr. Shisodia put in appearance on behalf of the respondent, and opposed the admission of the revision petition. The learned counsel for the parties requested that the file to the appeal filed by Mst. Kariman Bai & Others, which is pending before this Court, may also be called for and perused. Accordingly, the file S.B. C. First Appeal No. 102 of 1974 was called for and perused. 3. Relevant facts, which are necessary for the disposal of this revision petition, are that the plaintiff non-petition M/s. Laxman Lal Ram Pratap filed a suit for realisation of the mortgage amount against the petitioner. The trial Court, on 13th February, 1974, decreed the suit for a sum of Rs. 15,000/- with interest and cost. The judgment-debtor thereafter filed an appeal bearing No. S.B. Civil First Appeal No. 102 of 1974. It was admitted on 31st July, 1974. On 20th December, 1974, the trial Court passed a final decree. The property in dispute was auctioned on 11th April 1977. The petitioners thereafter filed on application under Order 41, Rule 6(2) of the Code of Civil Procedure before the executing Court on 29th July, 1977 praying that the confirmation of the sale be stayed as an appeal was already pending before the High Court, The learned executing Court dismissed the application on 5th December, 1977. Feeling aggrieved against this order, the present provision petition has been filed before this Court. 4. On behalf of the petitioners, it was contended that the provisions of Order 41, Rule 6(2), CPC are mandatory in character, and the learned District Judge has erred inlaw in dismissing the application dated 29th July, 1977 filed under Order 41, Rule 6(2), CPC It was also contended that the learned District Judge has seriously erred in law in relaying upon a case law which did not apply to the facts of the present case. The learned counsel for the petitioners relied on Gian Chand vs. Manohar Lal(l) and Laxman vs. Ram Chandra(2) The basic contention of the learned counsel for the petitioners is that the sale is completed only when an order under Order 21 Rule 92, CPC is passed confirming the sale, and prior to this it cannot be said that the sale has become final. 5. On behalf of the non-petitiorer, it was contained that there is no infirmity in the order of the learned District Judge which may call for an inter-ference on the revisional side. It was also contended that the learned counsel for the petitioners has not succeeded in establishing that the learned lower Court acted illegally arid with material irregularity in exercise of its jurisdiction in dismissing the petitioners application under Order 41, Rule 6 (2), CPC. It was also contended that the ruling reported in Gian Chand vs. Manoharlal (l) has not been following by the same High Court in the subsequent rulings. Reliance was placed on Mur Din vs. Bulaqi Mal & Sons (3) Jetha Mal vs. Punjab & Sindh Bank (4) and Hosbank Ram vs. Fur jab National Bank(5). It was also contended that the other High Courts have also taken a similar view. Reliance was placed on Ronya vs. Bali Ram (6) and Murg Ohn Tin vs. P.R.M.P.S.R.M. Chettyar Firm (7). It was also contended that the Rajasthan High Court has taken a similar view in Uda vs. Balu Lal (8). It was, therefore, contended that learned District Judge has acted in conformity with he decision of this Court, and it cannot be said that the learned lower Court acted illegally and with material irregularity in exercise of its jurisdiction fasuhing in failure of justice. Apart from the legal position regarding the maintainability of the revision petition, it was also contended by the learned counsel for the non-petitioner that the first Appeal No. 102 of 1974, the petitioners have tried to delay the auction proceedings and the execution proceedings as much as they could. The attention of the Court was invited to the various proceedings and the stay applications under Section 151 CPC which were moved in that appeal by the appellant in that case. The learned counsel for the non-petitioner also contended that the revision petition is not maintainable as the auction purchaser has not been impleaded as a party. The attention of the Court was invited to the various proceedings and the stay applications under Section 151 CPC which were moved in that appeal by the appellant in that case. The learned counsel for the non-petitioner also contended that the revision petition is not maintainable as the auction purchaser has not been impleaded as a party. According to the contention of the learned counsel for the non-petitioner, the auction purchaser was a necessary party, the non-impleading of the auction purchaser in the present revision petition should be construed as fatal, and on this score alone the revision petition deserves to be dismissed. 6. In rejoinder, the learned counsel for the petitioners has contended that in the facts and circumstances of the present case, the auction-purchaser is not a necessary party. It was contended that no interest of the auction purchaser is involved inasmuch as sale is not confirmed under Order 21 Rule 92, CPC. It was also contended that explanation 2 to sec. 47, CPC does not apply to the facts and circumstances of the present case, and by no stretch of imagination it could be urged that non-impleading of the auction purchaser is fatal to the maintainability of the revision petition. It was also contended that even if the auction purchaser has any remote interest, then his interest could be protected under Order 41, Rule 6(2), CPC. 7. The respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused. 8. Order 41 Rule 6(2), CPC provides that where an order has been made for the sale of immoveable property in execution of a decree, and an appeal is pending from such decree, the sale shall, on the application of the judgment-debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of. 9. In Gain Chand vs. Manoher Lal (1) Lahore 68(2), it was held that the trial Court is bound to stay the sale when it is brought to its notice that the decree had been appealed against, even where the property has been sold, but the sale has not yet been confirmed, the rule applies. 10. 9. In Gain Chand vs. Manoher Lal (1) Lahore 68(2), it was held that the trial Court is bound to stay the sale when it is brought to its notice that the decree had been appealed against, even where the property has been sold, but the sale has not yet been confirmed, the rule applies. 10. In Laxman vs. Ram Chandra (2) it was held that the provisions of Order 41, Rule 6(2), CPC are attracted in all cases in which there is an order for the sale of immovable property in execution of a decree and that decree is under appeal. The word shall" occurring after the words "the sale" in R. 6(2) which has to be given its natural and ordinary meaning does not, admit of any other interpretation than that the court to which an application is presented for the stay of the sale, has no option but to stay it. It was further held that the provisions of R. 6(2) are not complementary to those of R. 5. Hence it cannot be said that the stay of the sale under R. 6(2) is not imperative. 11. In Nur Din vs. Bulaci Mal & Sons (3), it was held that the sale is complete when the property is knocked down to highest bidder. Jethan Mal vs. Punjab & Sindh Bank (4) is also to the effect that the sale is complete when the highest bid is knocked down and when the Presiding Officer actually signed the last bid. In Hosbank Ram vs. Punjab National Bank(5) it was held that the sale is complete when property is knocked down by highest bidder. In Ronya vs. Bali Ram (6), it was held that sale is complete when both bid is accepted and 25 per cent of the value is deposited 12. In Maung Chn Tin vs. P.R.M.P.S.R.M. Chettyer Firm (7), it was held that the reasonable interpretation of O. 21. R. 84 is that the officer conducting the sale shall be the person to declare the highest bidder to be the purchaser. In Maung Chn Tin vs. P.R.M.P.S.R.M. Chettyer Firm (7), it was held that the reasonable interpretation of O. 21. R. 84 is that the officer conducting the sale shall be the person to declare the highest bidder to be the purchaser. In Uda vs. Balu Ram (8) it was held that where the officer conducting the sale declares the highest bidder as the purchaser and the court also orders the deposit of 25 percent of the purchase money, a subsequent order of the court ordering resale would amount to setting aside of the previous sale and would be appealable under O. XLIII, R. 1(j) of CPC. 13. In Satyanarayanamma vs. Nageswara Rao (9) it was held that when an order has been made for the sale of immoveable property in execution of the decree against which an appeal is pending, the judgment-debtor could make an application for the stay of the holding of the same. Once that stage is allowed to pass, and the judgment-debtor did not apply to the Court under Order 41, rule 6(2), Civil Procedure Code, in time, but allowed the sale to be held, the stage at which the powers under rule 6 (2) could be exercised has passed and no order could be made thereunder thereafter. There is a good deal of difference between the stage before the sale is held and the stage after the sale is held; for in the letter stage, the rights of third parties would come in, and there are bound to be other complications. It is for this reason that the sub-rule advisedly fixed the time when the application should be made, that is, when an order has been made for the sale of immoveable property. The learned Subordinate Judge is clearly wrong in thinking that the expressions "Order for sale" in Order 41, rule 6(2), Civil Procedure Code, includes the holding of the sale and the confirmation thereof. 14. The learned Subordinate Judge is clearly wrong in thinking that the expressions "Order for sale" in Order 41, rule 6(2), Civil Procedure Code, includes the holding of the sale and the confirmation thereof. 14. Explanation II to Section 47, CPC provides that (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. 15. Taking into consideration the ratio decided of various ruling cited above, I have no hesitation in holding that an application under Order 41, Rule 6 (2), CPC has to be filed when an order for sale has been made, but before the sale has been actually knocked down in favour of the highest bidder and 25 Per cent of the sale money has been deposited. I am fortified in my view by a decision of our own High Court reported in ILR 1 Rajasthan (1951) 698 as Uda vs. Balu Lal (8), and in 1959 (2) Andhra Weekly Reporter 439 as Satyanarayana-mma vs. Nageswara Rao (9) In view of this legal position, the present application of the petitioner under the provisions of Order 41 Rule 6 (2) of the Code of Civil Procedure was misconceived as it was made at a much latter stage. 16. Apart from this, this revision petition is also likely to be dismissed for not impleading the auction purchaser as a party to the petition. Explanation II to Section 47 of the Code of Civil Procedure makes it abundantly clear that once the sale has been knocked down in favour of the highest bidder, the interest of the third parties is also involved, and the revision petition is liable to be dismissed for not having impleaded the auction purchaser. 17. For the reasons stated above, there is no force in this revision petition, which is hereby dismissed.