K. P. KRISHNAPPA v. B. GANGAPPA BY LRS — 1981 DIGILAW 221 (KAR)

K. A. SWAMI, J. ( 1 ) THIS civil revision petition under S. 115 CPC, is preferred by the judgment- debtor against the order dated 24-8-1977 passed by the learned Addl. Civil judge, Bangalore City, confirming the order dated 17-3-1975 passed by the executing Court in Exn. Case No. 272 of 1968. ( 2 ) FACTS necessary to appreciate the contentions raised by Sri V. Krishnamurthy, learned Counsel for the petitioner, are as follows:2. 1) The deceased first respondent by name B. Gangappa had obtained a decree for money against the petitioner- judgment debtor. The execution of that decree was taken out in Exen. No. 272 of 1968. During the course of the execution, the house property belonging to the petitoner was put up for sale. As per the order sheet of the case, the sale at the spot was to be held on 27-11-1971 and the final bid was to take place before the presiding officer of the Court on 29-11-1971. Accordingly, the sale at the spot was held on 27-11-1971. The 2nd respondent offered the highest bid for Rs. 40,000. Thereafter, the final bid was to take place on 29-11-1971 before the Presiding Officer at the Court house. The records of the case do not reveal nor is it found in the order sheet of the case that on 29-11-1971, the final bid has been held before the Presiding officer at the Court house. On the con- trary, the order sheet of 29-11-1971 reads as follows: "sale held on 27-11-1971: One Sri seethappa Ajp has purchased the schedule property for Rs. 40,000 (forty thousand) only and full amount of Rs. 40,000 deposited under r. O. 376369 dated 29-11-1971 and poundage fee of Rs. 410-00 has been - credited under RO. 1030 dated 29-11-1971. For confirmation by Intls. 3. 1. " thereafter, under an erroneous impression that the sale has taken place, the judgment-debtor has filed an application under Order 21, Rule 90 CPC, for setting aside the sale. Curiously enough, the Court also without noticing that the final bid has not taken place has proceeded to enquire into the application filed by the petitioner for setting aside the sale. 2. 2. During the course of enquiry the judgment-debtor came forward to make payment of the amount on 25-11-1974 and he made payment of Rs. 2000 which was received by the decree- holder. 2. 2. During the course of enquiry the judgment-debtor came forward to make payment of the amount on 25-11-1974 and he made payment of Rs. 2000 which was received by the decree- holder. The Court passed an order on that day by entering part satisfaction of the decree for Rs. 2,000 and adjourned the case to 2-12-1974 for payment of the balance. On 2-12-1974, the case was adjourned to 6-1-1975 and on that day, the judgment debtor made further payment of Rs. 500 which was received by the decree-holder towards the part satisfaction of the decree and the decree-holder also submitted that he had no objection for setting aside the sale held on 27-11-1971. The case came to be posted on 31-1-1975 to hear the auction purchaser. 2. 3. On 31-1-1975, as per the order sheet, the auction purchaser also submitted that he was agreeable for setting aside the sale if he were to be paid back the bid amount with solatium. It can further be inferred from the order sheet of 31-1-1975 that the judgment debtor also had agreed to pay the balance of the amount due under the decree and the solatium. In view of this agreement, the judgment debtor had not pressed his application for setting aside the sale. Accordingly, the court, while granting time to the judgment debtor to pay the balance of the decretal amount and the solatium, has dismissed the application. The order passed on 31-1-1975 reads as follows: "d. H. by Sri M. R J J. Dr. by sri N. S. K. To hear the auction purchaser: auction purchaser submits that he is agreeable to set aside the sale if he is paid back the amount with solatium The J. Dr. has not paid the balance also. He also submits that he will not press the application filed to set aside the sale. Hence the said application is rejected. Posted finally to deposit the solatium and to pay the balance of decretal amount. Adj. to 15/3. . ' on 15-3-1975, the decree-holder received a further sum of Rs. 1,000 and the court entered part satisfaction of the decree and adjourned the case to 17-3-1975 for payment of the balance of the amount. On 17-3-1975 the judgment debtor was absent. Posted finally to deposit the solatium and to pay the balance of decretal amount. Adj. to 15/3. . ' on 15-3-1975, the decree-holder received a further sum of Rs. 1,000 and the court entered part satisfaction of the decree and adjourned the case to 17-3-1975 for payment of the balance of the amount. On 17-3-1975 the judgment debtor was absent. The Court, without noticing the previous orders, has confirmed the sale on the ground that the judgment debtor is absent and the balanc'e of the amount is not deposited. 2. 4) In the appeal preferred by the petitioner, the appellate Court has dismissed the appeal confirming the order of the trial Court. ( 3 ) SRI V. Krishnamurthy, learned counsel for the petitioner, submitted that it was necessary to hold final bid before the presiding officer at the Court house as per Rule 138 of the Karnataka civil Rules of Practice, 1967, (hereinafter referred to as the"rules), and as the final bid was not held, the auction sale was not complete; therefore the question of confirmation of sale did not arise. Alternatively, it was contended by the learned Counsel for the petitioner that even on the assumption that the sale had taken place, during the pendency of the application for setting aside the sale, the decree-holder had agreed to accept the amount and to set aside the sale and accordingly the decree-holder accepted the amount paid in Court by the judgment debtor from time to time and the Court also entered part satisfaction of the decree. . Not only this, it was submitted by the learned Counsel that the auction purchaser also agreed for setting aside the sale on repayment of the amount deposited by him with solatium to which the judgment debtor had no objection; therefore, he did not pursue the application. Accordingly, the application was dismissed and the petitioner was granted time to pay the balance of the decretal amount and the solatium. As such, it was submitted that the question of confirmation of sale did not arise, as it was open for the decree holder and the auction purchaser to agree for setting aside the sale on payment of the decretal amount with solatium. Therefore it was submitted that the proper remedy for the decree holder and the auction purchaser was to enforce the order dated 31-1-1975 passed on the basis of the compromise. Therefore it was submitted that the proper remedy for the decree holder and the auction purchaser was to enforce the order dated 31-1-1975 passed on the basis of the compromise. In support of the alternative contention, the learned counsel for the petitioner relied upon a decision of the Supreme Court in Moti Lal v. Md, Hasan Khan (1 ). It was also further submitted that the petitioner had deposited in this court a sum of Rs. 2. 000 and Rs. 1,883 on 8-11-1978 under r. O. No. 896 and 897 respectively. Thus, in all, the petitioner had deposited Rs. 3,883. Out of that, if Rs. 2,000 were to be paid to the auction purchaser towards the solatium, the remaining amount, according to the learned Counsel was sufficient to enter full satisfaction of the decree. ( 4 ) FROM the order sheet of the case referred to above, it is clear that at no point of time, the final bid has been held before the presiding officer at the court house. The records of the case also do not reveal that the final bid has been held before the presiding Officer at the Court house. ( 5 ) RULE 138 of the Rules, reads as follows:"sale of immoveable property shall ordinarily take place at the spot, subject to the condition that the final bid shall be offered before the Presiding Officer at the Court House. "rule 139 of the Rules, further provides that the proclamation of sale itself shall specify not only the date of sale at the spot, but also the date on which the final bid shall be offered before the presiding Officer. ( 6 ) IN this case, the proclamation of sale also does not state that the final bid shall take place on 29-11-1971 before the Presiding Officer at the Court house. Rule 138 of the Rules referred to above is mandatory. It is intended to safeguard the interest of the judgment debtor whose immoveable property is brought for sale. It is also intended to eliminate all possible malpractices which are likely to be adopted so as to knock down the property put up for sale by public auction at a lower price. It is intended to safeguard the interest of the judgment debtor whose immoveable property is brought for sale. It is also intended to eliminate all possible malpractices which are likely to be adopted so as to knock down the property put up for sale by public auction at a lower price. If the final bid is offered before the presiding officer at the court house, even those persons who could not offer their bids at the spot for some reason or the other, will be able to offer their bids before the presiding officer of the court at the Court house. There is solemnity attached to the proceeding before the Court and it is open for all those who are interested in purchasing the property put up for sale, to offer their bids. Thus, the conduct of final bid before the Presiding Officer at the court house ensures not only the proper conduct of the sale in a free and solemn atmosphere, but it also enables to secure proper value to the property put up for sale. That being the object of the aforesaid Rule, the sale has to be conducted in accordance with the said rule. Failure to conduct the sale in accordance with the aforesaid Rule, vitiates the sale proceeding. If the final bid is not offered before the Presiding Officer at the Court house, the auction sale of the immoveable property is not complete. For the auction sale of the immoveable property to be complete, the final bid must be offered before, and must be accepted by, the presiding officer at the Court House. In the instant case, the final bid has not been offered before the presiding officer at the court house. Therefore, there is no sale held in accordance with Rule 138 of the rules. Hence, the question of confirmation of such a sale which is not complete does not arise. That being the position, merely because the judgment debtor (petitioner) under an erroneous impression that the sale has taken place, has filed an application for setting aside the sale and during the course of enquiry of that application he remains absent and fails to deposit the balance of the decretal amount and the solatium as ordered, does not enable the Court to confirm the sale which is not complete. 6. 6. 1) It is a case in which neither the executing Court has made efforts to look into the records to satisfy itself that the sale has taken place in accordance with Rule 138 of the Rules and also the effect of the various orders passed by it during the course of enquiry into the application filed by the petitioner for setting aside the sale, nor the learned appellate Judge has looked into the records of the case. If only any one of the courts below would have looked into the records of the case the incomplete sale would not have been confirmed. ( 7 ) THE aforesaid conclusion of mine is sufficient to allow this civil revision petition and to set aside the orders of both the courts below. However, the alternative contention of Sri V. Krishna murthy, learned Counsel for the petitioner, is also relevant. Therefore, I proceed to consider it. During the course of the enquiry into the application filed by the petitioner for setting aside the sale, as it is noticed earlier, not only the decree holder has agreed to receive the amount and to set aside the sale the auction purchaser also has agreed to of aside the sale on repayment of the amount deposited by him with solatium. The judgment debtor has agreed to pay the decretal amount with solatium. Consequently in view of the submission made on behalf of the) decree-holder and the auction purchaser to which the judgment-debtor had no objection, the judgment debtor has got the application for setting aside the sale dismissed and he has been given time to pay the solatium and the balance of the decretal amount. Thus, the order passed on 31-1-1975 is the one passed on the basis of the compromise arrived at by the parties. It is held by the Supreme Court in the case of Moti Lal (1) as follows:"it is open to the parties to enter into a compromise with reference to their rights and obligations under a decree. There is nothing in the Code of Civil Procedure which prevents the parties from entering into such a compromise. If the compromise amounts to an adjustment of the decree, it must be recorded under o. 21 R. 2 and if not so recorded, it cannot be recognised by any Court executing the decree. . . . . . . . . If the compromise amounts to an adjustment of the decree, it must be recorded under o. 21 R. 2 and if not so recorded, it cannot be recognised by any Court executing the decree. . . . . . . . . The executing Court can determine all questions relating to the agreement postponing the execution of the decree and the incidental term as to payment of the higher rate of interest. The agreement to pay the higher interest is enforceable in execution of the decree, see Oudh Commercial bank Ltd. v. Thakurain Bind Basnikuer, 66 Ind. App. 84 at pp. 100-103= (AIR 1939 PC 80 at pp. 85-86 ). ""the jurisdiction of the executing court to enforce such a compromise in not taken away by 0. 23, R. 4 of the code of Civil Procedure. The effect of Or. 23 R. 4 is that Order 23 rule 3 does not apply to execution proceedings Independently of 0. 23 R 3, the provisions of 0. 21 R 2 and S. 47 enable the executing Court to record and enforce such a compromise in execution proceedings. Nor does 0. 20 R 11 (2) affect this power of the executing Court Order 20, rule 11 enables the Court passing the decree to order postponement of the payment of the decretal amount on such terms as to the payment of interest as it thinks fit on the application of the judgment debtor and with the consent of the decree-holder. It docs not affect the power of the executing court under S. 47 and 0. 21 R. 2. " ( 8 ) IN the instant case, as is already pointed out, during the course of execution, on the basis of the agreement arrived at by the parties, the Court has passed the order dated 31-1-1975 granting time to the petitioner to pay the balance of the decretal amount and the solatium. The Court has also passed orders on 25-11-1974 and 6-1-1975 entering part satisfaction of the decree as the judgment debtor has paid in the court to the decree holder Rs. 2000 and rs. 500 respectively; and thereafter the order dated 31-1-1975 came to be passed on the basis of the compromise and the petitioner was granted time till 15-3-1975 for payment of the balance of the decretal amount and solatium. Before 15-3-1975, on 15-2-1975 itself the judgment debtor has paid Rs. 1000. 2000 and rs. 500 respectively; and thereafter the order dated 31-1-1975 came to be passed on the basis of the compromise and the petitioner was granted time till 15-3-1975 for payment of the balance of the decretal amount and solatium. Before 15-3-1975, on 15-2-1975 itself the judgment debtor has paid Rs. 1000. The decree holder has reported to the court about the receipt of the amount and the Court on 15-3-1975 has entered part satisfaction of the decree for rs. 1000 and has adjourned the case for payment of the balance to 17-3-1975. Thus, in the light of the aforesaid decision of the Supreme Court, it is clear that after passing of the order on 31-1-75, the right of the decree-holder is only to press for the payment of the balance of the decretal amount and that of the auction purchaser is only to claim the solatium and the repayment of the bid amount deposited by him. They have no right to pursue the auction sale and seek confirmation of the said auction sale. Their remedy is only to enforce the compromise. The Court also has acted without jurisdiction in confirming the sale which. has been given up by the auction purchaser and the decree-holder. As pointed out above, the sale is also not complete as there is no final bid offered before the presiding officer of the Court at the court house. ( 9 ) IT is also submitted that the amount so far deposited in this court as well as in the executing Court is not only sufficient to satisfy the decree but is also sufficient to pay the solatium to the auction purchaser. It is not necessary to examine this contention in this revision petition. It is a matter to be verified by the executing Court. Therefore, i leave this question to be gone into by the executing Court. ( 10 ) FOR the reasons stated above, this civil revision petition is allowed. The order dated 17-3-1975 passed by the 5th addl. 1st Munsiff, Bangalore in Exn. case No 272/68 and the order dated 24-8-1977 passed by the 2nd Addl. Therefore, i leave this question to be gone into by the executing Court. ( 10 ) FOR the reasons stated above, this civil revision petition is allowed. The order dated 17-3-1975 passed by the 5th addl. 1st Munsiff, Bangalore in Exn. case No 272/68 and the order dated 24-8-1977 passed by the 2nd Addl. Civil judge, Bangalore City, in M. A. No. 55 of 1975 are set aside and the case is remitted to the Executing Court with a direction to examine the question as to whether the amount so far deposited by the petitioner is sufficient to pay the balance of the decretal amount to the decree-holder and also the solatium of rs. 2,000 to the auction purchaser. In case it is found by the Exeeuting Court that the amount so far deposited by the petitioner-judgment debtor is not sufficient to satisfy the amount due under the decree and also to pav a sum of Rs. 2. 000 to the auction purchaser towards the solatium, the judgment debtor be given time to deposit the amount required to be paid by him. The amount of Rs. 2000 and Rs. 1883 deposited by the judgment debtor in this Court on 8-10-1978 under R. O Nos. 896 and 897 respectively, be transferred to the executing Court for payment of solatium of Rs. 2,000 to the auctionpurchaser and the balance to be adjusted towards the balance of the decretal amount. ( 11 ) IT is also made clear that in view of the aforesaid findings, the sale certificate which is issued on the basis of the aforesaid auction sale falls to the ground and has become unenforceable. Consequently, it has no value in the eye of law. Therefore, it is not necessary to set aside the same. --- *** --- .