Firm Har Bilas Rai Deoki Nandan v. Lucknow Resin Factory
1981-01-08
DEOKI NANDAN
body1981
DigiLaw.ai
JUDGMENT Deoki Nandan, J. - This is an Execution Second Appeal arising from an objection under Section 47 of the Civil P.C. filed by the judgment-debtor-appellants and judgment-debtor-respondent No. 6, on 23rd September, 1967 praying for a declaration that the sale was null and void and ineffective and may be set aside as such, and if the decree-holder takes possession of the property sold, the possession may be restored to them. The date on which the objection purports to have been verified is 1st September, 1967. It was filed on 23rd September, 1967. Possession of the property sold had already been delivered on 13th September, 1967, to the decree-holder who had purchased the property at the auction sale held on 22nd April, 1967, after confirmation thereof on 10th June, 1967. The grounds on which the sale was alleged to be null and void and ineffective were those contained in paragraph 12 of the objection. They are: (1) No notice of attachment was served on the judgment debtors; (2) Notice under O. 21 Rule 66 was not sent with details of the property to the objectors; (3) The notice (under Order 21 Rule 66) published in the newspaper for Radha Krishan, judgment-debtor, did not contain the details of the property and the year of the date fixed for hearing; (4) The Court was closed for an indefinite period on 16th December, 1966 and no intimation of the fixing of a date in the matter was given to the objectors nor could or did they have any knowledge of the same; (5) The decree-holder got the property sold secretly and in league with the auctioneer without giving any information to the purchasers of Haldwani, he purchased the property by closing the sale on the basis of fictitious and sham bids in his favour and the objectors had suffered great loss on account of the purchase of the property by the decree-holder himself at a very low price. 2. The executing Court dismissed the objection on the finding that the objection was hopelessly time barred. On appeal by the objectors, the lower appellate Court held that the objection, though it purported to be under Section 47 of the Civil Procedure Code, was in substance an objection under O. 21 Rule 90 and was as such time barred.
2. The executing Court dismissed the objection on the finding that the objection was hopelessly time barred. On appeal by the objectors, the lower appellate Court held that the objection, though it purported to be under Section 47 of the Civil Procedure Code, was in substance an objection under O. 21 Rule 90 and was as such time barred. The lower appellate Court also held that the objections taken to the validity of the sale were such as ought to have been taken before the sale; that the notice under Order 21 Rule 66 was duly served on the objectors and on account of their failure to prefer any objections under Order 21 Rule 66 on the date fixed they were precluded by the terms of O. 21 Rule 90 from raising objections after the sale. It further held that the price for which the property was sold could not be said to be low and that the judgment-debtors suffered no substantial injury by reason of any irregularity in the sale. It may be added that the lower appellate Court did not find that there was any irregularity in the proceedings for sale. 3. Mr. G.N. Verma, learned counsel for the appellants raised (sic) and meticulous argument. He did not contend that the objection if it was an objection under Order 21 Rule 90 was not time barred. What he contended was that the objection was under Section 47 of the Civil P. C. and on the facts the sale was invalid and a nullity in law. 4. Having heard learned counsel I do not say that an objection to a sale cannot be taken under Section 47 of the Civil P. C. even after the confirmation of the sale, on the ground that the sale is a nullity; but at the same time if the sale cannot be shown to be wholly null and void or a nullity in law, an application under Order 21 Rule 89 or Rule 90 is a must before a sale in execution of a decree could be set aside on the grounds mentioned in those two rules.
The first question which, therefore, arises is whether any of the grounds taken in the objection were such as could be said to render the sale a nullity, if those grounds were found to be true; and secondly whether such one, or more, of the grounds taken by the objectors in the present case is made out or not. 5. The lower appellate Court has held that the objection was in substance an objection under Order 21 Rule 90. Let us examine each one of the grounds taken under paragraph 12 of the objection and see whether any one of them could be said to be such as would if found proved render the sale a nullity. 6. I have already reproduced the said grounds. The first ground was that notice of the attachment was not served on the judgment debtors. The ground canvassed before the lower appellate Court was that the attachment was not proclaimed by beat of drum. The lower appellate Court has observed that, that objection was not specifically raised and it must, therefore, be presumed that the attachment was regular. A property must be attached before it is put up for sale in execution of a decree. The endorsement at the back of the warrant of attachment shows that the prohibitory order of attachment was tendered to the judgment debtor which appears to be a Firm by tendering it to some one present there on 23rd Sept. 1965 who endorsed thereon that, Har Vilas Rai Deoki Nandan were at Ranikhet and Radha Kishan was out to Desawar. The validity of the service was not challenged by the learned counsel before me. I may add that the other requirements of sub-rule (2) of Rule 54 of Order 21, namely, the affixation of the order on a conspicuous part of the property, Court House and the Tahsil, are said to have been complied with. There is no mention of any proclamation by beat of drum in the report of attachment but that is not the only mode of proclamation under Order 21, Rule 54 (2). It can be proclaimed in any other customary mode. I am unable to say that the provisions of Order 21 Rule 54 (2) were not substantially complied with or that the manner of attachment was in any way prejudicial to the interest of the judgment-debtors.
It can be proclaimed in any other customary mode. I am unable to say that the provisions of Order 21 Rule 54 (2) were not substantially complied with or that the manner of attachment was in any way prejudicial to the interest of the judgment-debtors. I may add that the object of attachment of property before sale is to prevent alienation. The present case is not one where the property may have been alienated by the judgment-debtor before the sale, and any irregularity in the manner of attachment could not have possibly prejudiced the judgment debtors or to have affected the validity of the sale. 7. The second objection that the notice under Order 21 Rule 66 was not sent to the objectors is on the face of it false. It was personally served on the objector-appellants, vide paper No. 31-Ga, and was duly served by publication on the objector-respondent No. 6. 8. The next objection that the notice for Radha Kishan published in the newspaper did not contain the year of the date fixed under Order 21 Rule 66, is equally untenable. The first notice under Order 21 Rule 66 was also published in the newspaper. It was addressed to all the three judgment-debtors, and fixed 29th April, 1966, for hearing under Order 21 Rule 66. However, the Court directed the issue of a fresh notice after some correction in the statement prepared under Order 21 Rule 66 on 30th July, 1966. This time the notice addressed to the first two judgment-debtors was served personally on Har Bilas Rai, vide 31-1Ga, and that meant for Radha Kishan was served by publication in a newspaper, vide paper No. 34-1Ga. This newspaper is dated 8th November, 1966, and contains the date fixed for hearing under Order 21 Rule 66 as "16-12". The printed notice bears the date 26th October, 1966. No one could have been prejudiced by the non-specification of the year of the date fixed for hearing under Order 21 Rule 66 by reading that notice. 9. The next objection is that the Courts were indefinitely closed from 16th December, 1966 and the objectors had no notice or information of the subsequent dates fixed. The Civil P.C. does not require the giving of any further notice to the judgment-debtor after service of a notice fixing the date for drawing up of the sale proclamation.
9. The next objection is that the Courts were indefinitely closed from 16th December, 1966 and the objectors had no notice or information of the subsequent dates fixed. The Civil P.C. does not require the giving of any further notice to the judgment-debtor after service of a notice fixing the date for drawing up of the sale proclamation. That notice was given when the sale proclamation was drawn up. It was not a case of dates of hearing being fixed in a suit after the adjournment of the initial date of hearing. The objectors have only themselves to blame for not looking after their case properly. It cannot, therefore, be said that the execution proceedings were bad on account of any want of notice under Order 21 R. 66 of the Civil P. C. The rest of the objections, it is not disputed, were not such as could justify the challenge to the sale under Section 47 of the Civil P.C. 10. Certain cases were cited before me, and before I close, I must refer to them. The first case cited was that of Ram Prasad v. Shiva Kumar ( AIR 1932 All 55 ): (1931 All LJ 849). That case lays down that sale in violation of statutory provisions of Rr. 66, 106 and 110 is liable to be set aside if such sale results in underselling property. Suffice it to say that no such difficulty as was found in that case could be found in the present case. As to the objection about the price fetched at the sale, the lower appellate Court has found as a fact that the price fetched at the sale was not low. 11. In Firm Kundan Lal Brindaban v. Firm Bani Prasad Baij Nath Prasad ( AIR 1957 All 76 ): (1956 All LJ 639) it was held that if a defendant has been duly served for the first date in the case it is not necessary for the Court to serve him with notice of the subsequent dates in the case. 12. Fasahat Ali v. Board of Revenue, U.P. at Allahabad is reported in the same volume of AIR 1957 All 449 : (1957 All LJ 388).
12. Fasahat Ali v. Board of Revenue, U.P. at Allahabad is reported in the same volume of AIR 1957 All 449 : (1957 All LJ 388). That lays down that "where the place for holding the sale mentioned in the sale proclamation is changed subsequently, a fresh sale proclamation should be issued and the omission to issue such proclamation is an irregularity which renders the sale voidable". A fresh sale proclamation was in fact issued in the present case and no defect has been pointed out in the sale proclamation which is paper No. 37-6 Ga. Moreover, as held by that Court that is an objection to be taken on an objection under Order 21 Rule 90 of the Civil P.C. 13. Ramsesha Iyer v. C.V. Ramanuja-chariar ( AIR 1935 Mad 459 ) relied upon by the learned counsel only emphasised the need of a notice under Order 21 Rule 66. 14. In Panna Lal v. Murari Lal ( AIR 1967 SC 1384 ): (1967 All LJ 685) it was ruled out that the expression "knowledge of the decree" in Article 165 means knowledge of the particular decree which is sought to be set aside and when summons were not duly served limitation under Article 164 does not start running against the defendant because he has received some vague information that some decree has been passed against him. No such question arises in the present case, for the service of the notice under Order 21 Rule 66 was complete and effective and the question whether the objectors had knowledge or notice of the subsequent proceedings after the period during which the Civil Courts did not function, is irrelevant. 15. In Ram Chandra Arya v. Man Singh ( AIR 1968 SC 954 : (1968 All LJ 545)) it was held that a decree against a lunatic without appointment of guardian was a nullity and sale held in execution of that decree was void ab initio and, therefore, the question of any party having to resort to provisions of Order 21 Rr. 89 and 90 to have the sale set aside does not arise. I have already proceeded on the basis that although an application under Order 21 Rule 90 was not made within limitation on a proper basis, an objection under Section 47 could be entertained, if it could be shown that the sale was null and void. 16.
89 and 90 to have the sale set aside does not arise. I have already proceeded on the basis that although an application under Order 21 Rule 90 was not made within limitation on a proper basis, an objection under Section 47 could be entertained, if it could be shown that the sale was null and void. 16. In Harnandrai Badridas v. Debidutt Bhagwati Prasad ( AIR 1973 SC 2423 ) it was held that a decree-holder who purchases the property in execution of a decree does not lose his character as a party to the suit. I have been unable to think of any connection between this case and the present one before me except that the decree-holder was the auction purchaser in the present case also and the objection giving rise to the appeal was one filed under Section 47 of the Civil P. C., but as noticed above, the objection was filed after the delivery of possession to the decree-holder. In Gummathi Narayanappa v. Talari Akkulappa (AIR 1965 Andh Pra 215) a learned single Judge of the Andhra Pradesh High Court held that in the case of violation of a mandatory provision like that of sub-rule (2) of Rule 54 of O. 21 the sale of property is not merely irregular but void and could be challenged under Section 47 of the Civil P.C.I have examined the facts of the case in hand before me and have come to the conclusion that there was no violation of any such mandatory provision of law and the sale could not be said to be void. 17. In the result the appeal fails and is dismissed with costs.