Ram Prasad Pandey v. P. B. A. S. Inter College — 1985 DIGILAW 549 (ALL)

ORDER B.D. Agarwal, J. - The sole question raised in this writ petition under Article 226 of the Constitution is whether the objection preferred by the petitioner under O. 21, R. 90, Civil P.C. was barred by limitation. The respondent 1 obtained a decree in Original Suit No. 398 of 1954 on April 14, 1958 for recovery of money against the petitioner from the Court of Munsif, Koil, Aligarh. On transfer to the Court of Munsif, Deoria the execution directed against this decree was registered as Execution Case No. 51 of 1969 dated March 20, 1969. The amount claimed to be recovered under the decree is Rs. 6,547.36 only. Agricultural land belonging to the petitioner was attached in execution on July 17, 1969. After several attempts made to sell the land in auction by Court, which proved abortive for one reason or the other, the execution court directed on January 17, 1972 the Court Amin to make sale of the said property on April 18, 1972 and to report. The auction as held accordingly on April 18, 1972. Smt. Prabhawati and another (respondents 3 and 4) made a joint bid for Rs. 8,100/- which was the highest at that point of time, but they failed to deposit one-fourth of the purchase money forthwith whereupon the Court Amin invited fresh bids to be offered. The highest bid this time was that of Smt. Panna Devi, respondent No. 2. for the amount of Rs. 8,200/-. This was accepted by the Court Amin. A sum of Rs. 2,050/- being the one- fourth was deposited and the Court Amin submitted his report dated April 19, 1972 to the Court of Munsif, Deoria. The balance of the purchase-money was deposited by the respondent-2 on May, 2, 1972. On 16-2-1974 an objection was filed by the petitioner under O. 21. R. 90. C.P.C. against the sale alleging certain irregularities in the publication and conduct thereof besides contending that the land was of the value of several lacs and that it was wrongly claimed to have been disposed of for a paltry sum of Rs. 8,200/- only. This objection was resisted by the auction- purchaser namely, respondent 2, contending, inter alia. that it was barred by limitation. On July 2, 1977, the Munsif, Deoria, rejected the objection and the appeal filed against the same was dismissed by the VI Addl. 8,200/- only. This objection was resisted by the auction- purchaser namely, respondent 2, contending, inter alia. that it was barred by limitation. On July 2, 1977, the Munsif, Deoria, rejected the objection and the appeal filed against the same was dismissed by the VI Addl. District Judge, Deoria, on July 31, 1978 holding that the objection was barred by limitation. 2. Aggrieved, the judgment-debtor- petitioner has approached this Court. 3. Learned counsel for the petitioner urged that the Court Amin did not conclude the sale on April 18, 1972. Instead having expressed his opinion in support of the bid of Rs. 8,200/- offered by respondent 2 being accepted, he left over the question of approval of the highest bid to the execution court and, therefore, according to the learned counsel, the limitation did not commence to run on April 18, 1972. Under Article 127 of the Limitation Act. 1963, prior to the amendment introduced by the Central Act 104 of 1976, the limitation for an application to set aside a sale in execution of a decree including any such application by a judgment-debtor was 30 days, commencing from the date of the.sale. In Bijli Cotton Mills (P) Ltd. v. VI Addl. District Judge, Aligarh, 1983 All LJ 1320 a Division Bench ruled, considering the amendment brought about by the Central Act 104 of 1976 that where the sale takes place after February 1, 1977, the limitation governing any matters covered under Article 127 would be 60 days from the date of sale. The case before us being of the period preceding the commencement of the amendment, the limitation shall be 30 days only. The material question raised before me is as to when did the sale in the instant case take place or, in other words, as to whether the sale may, upon the facts and circumstances hereinbefore, be held to have taken place on April 18, 1972. 4. Upon perusal of the report submitted in the instant case by the Court Amin dated April 19, 1972, which is Annexure 3 to the writ petition, it will appear that para 1 thereof points to the highest bid of Rs. 8,100/- offered by respondents Nos. 3 and 4. Therein also he narrates that that the property was knocked down in their favour for this amount in anticipation of approval by the Court. 8,100/- offered by respondents Nos. 3 and 4. Therein also he narrates that that the property was knocked down in their favour for this amount in anticipation of approval by the Court. Thereafter he states that those respondents did not deposit one-fourth of-the bid money as required under O. 21, R. 84, C.P.C. and hence a reauction was held. Preference is then made by him to the highest bid of Rs. 8,200/- offered for respondent 2 by her husband at the auction. The second paragraph of the report is relevant wherein the Amin states : " xjhc ijoj ;gh tk;nkn uhyke ryc dbZ ckn uhykeh dh tk pqdh tks tj uhyke vnk ugha gksus ls uhyke [kre ugha gks lds FksA vkSj mlh tk;nkn uhyke ryc ls lEcfU/kr nhxj fgLls nkjku dh Fkh cksyh gks pqdh gS tks fd 8200@& ls de jgh gSA tSlk fd mtZ iznkj fMxjhnkj us crk;kA nl uqDrk gtkj ls cksyh Mkd Jherh iUuk nsoh o nkfuLr rkcsnkj dkQh ekyqe gqvkA ysgktk uhyke o mEehn eUtwjh vnkyr Jherh iUuk nsoh ds uke [kRe dj fn;kA " The Amin thereafter concludes his report referring to deposit of one fourth of the bid amount for the respondent 2 and saying that the report was being submitted for orders to the Court. 5. Taken thus in its entirety the report reveals that the Court Amin expressed his opinion in support of the bid of Rs. 8,200/- offered for the respondent 2 being expected as final. He points in this connection to the attempts earlier made to sell the property by auction which had proved abortive and says that the bid amount fetched therein was found lower. He also suggests that in his opinion the amount offered this time be in the situation taken as sufficient and having made his recommendation in support of this bid, he leaves the matter to the Court with the significant addition of the words "Ba Ummeed Manzoori- making abundantly clear thereby the tentative character of what he did. The acceptance on his part was neither unqualified nor unequivocal. 6. For the petitioner the stand taken before the execution court also was that the conclusion of the auction by the Amin was only provisional and that it had not become final in the absence of approval accorded by the Court. The acceptance on his part was neither unqualified nor unequivocal. 6. For the petitioner the stand taken before the execution court also was that the conclusion of the auction by the Amin was only provisional and that it had not become final in the absence of approval accorded by the Court. The execution Court, however, did not advert to this aspect while the appellate Court observed : "In this case the Officer i.e. the Amin conducting the sale accepted the highest bid and the one fourth of the auction money on the spot. He did not refer the matter to the court. The learned counsel for the appellant, Sri Ram Prasad Pandey, contended that the Amin in this case adopted the practice to leave the question of the acceptance of the highest bid with the Court. I find that there is nothing on record to this effect." This line of approach is clearly contrary to what is contained on the record as is manifest from the reproduction of the relevant portion of the report submitted by the Court Amin dated 19-4-1972. The original record of execution case has been requisitioned before me and the contents of the report have been verified by me with the help thereof. 7. For the respondent 2, the learned counsel referred to O. 21, R. 84(1), C.P.C. which reads as under: "84. Deposit by purchaser and re-sale on default. - On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit on twenty five per cent on the amount of his purchase money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be resold....... 8. Order 21, Rule 90 relating to an application to set aside sale on ground of irregularity of fraud in publication or conduct thereof has also been referred. From No. 27 of Appendix E to the Code of Civil Procedure prescribes the contents of the warrant of sale of property in execution of a decree for money. The command of the Court to the Court Amin thereunder is to sell by auction the property attached under a warrant from the court. Form No. 29 relates to proclamation of sale is under O. 21, R. 60. Clause 3 of the conditions of sale enumerated in Form 29 reads : "3. The command of the Court to the Court Amin thereunder is to sell by auction the property attached under a warrant from the court. Form No. 29 relates to proclamation of sale is under O. 21, R. 60. Clause 3 of the conditions of sale enumerated in Form 29 reads : "3. The highest bidder shall be declared to be the purchaser of any lot, provided always that he is legally qualified to bid, and provided that it shall be in the discretion of the court or officer holding the sale to decline acceptance of the highest bid when the price offered appears so clearly inadequate as to make it advisable to do so." 9. The learned counsel on the strength of this provision contends that the Court Amin had the authority or power to accept the bid which was the highest and to declare the respondent 2 as the purchaser whereof on the deposit of one-fourth of the bid money on her behalf. These provisions undoubtedly suggest that it is within the power or authority of the Court Amin to conclude the auction sale by acceptance of the highest bid offered and declare the bidder as the purchaser followed by acceptance of one-fourth of the amount and that it is in his discretion to decline, in case he is of opinion that the bid offered is not adquate enough, but then the crucial question still remains as to whether in the particular case the Court Amin has accepted finally the bid offered or as to whether he has left this over making it subject to approval accorded by the Court. The best evidence for that purpose is furnished by intrinsic contents of the report dated 19th April, 1982. There was hardly occasion for inserting the words "Ba Ummeed Manzoori" after having made his recommendation in support of the bid being acceptable in case the Court Amin intended to conclude the sale by himself or under his authority. In my opinion the acceptance accorded by him was only tentative. In so far as the Amin was concerned, he felt that the bid was adequate enough since the earlier bids had fetched even lesser amount, but then instead of concluding at that he left the final seal of approval to be put by the Court. It was at the best a provisional action on his part. 10. In so far as the Amin was concerned, he felt that the bid was adequate enough since the earlier bids had fetched even lesser amount, but then instead of concluding at that he left the final seal of approval to be put by the Court. It was at the best a provisional action on his part. 10. The decision in Lala Ram v. Bhajani, AIR 1970 All 398 relied for the respondent 2 does not, it will appear, support her contention and, on the other hand, this supports the petitioner. After discussing at length decisions of various High Courts in this case the Division Bench culled out the following principles in Para 15 at p. 403 : "From an analysis of the decided cases and of the relevant provisions of the Code it. appears to us that, in three cases, the date of the sale will be the date of acceptance or approval or the bid by the Court, namely. (i) When there is a practice of a rule to this effect: (ii) When the Court has reserved to itself the power to accept the bid and to declare the purchaser: and (iii) When the officer conducting the sale does not, in fact, conclude the sale by accepting the highest bid but refers the matter to the Court. In other cases, the date of sale will be the date on which the officer conducting the sale accepts the highest bid, declared the purchaser and the purchaser deposits 25 per cent of the purchase price." In that particular case the record showed that the Amin had accepted the highest bid of Girraj. On the Fard Neelam, the Amin noted down all bids received by him including the last bid of Rs. 1,200/- by Girraj. After the bids, the Amin has stated that no higher bid than that of Girraj was forthcoming and, therefore, the auction was concluded in favour of Girraj for Rs. On the back of the warrant of sale the Amin wrote out his compliance report. In this report also he stated that no higher bid than that of Rs. 1,200/- was forthcoming, that the price offered appeared to be adequate and therefore, the sale was concluded in favour of Girraj for Rs. 1,200/-. He further stated that Rs. 300/- in cash had been deposited. In this report also he stated that no higher bid than that of Rs. 1,200/- was forthcoming, that the price offered appeared to be adequate and therefore, the sale was concluded in favour of Girraj for Rs. 1,200/-. He further stated that Rs. 300/- in cash had been deposited. On these facts it was found abundantly clear that the Amin had accepted the highest bid and had taken the deposit of one-fourth. These reports in that case did not bear out the observation of the District Judge that the Amin had not accepted the bid of Girraj and had merely forwards the bids for acceptance to the Munsif. Before us, the present is a converse case. The proposition (1) quoted above may not be said to be attracted in the present in the absence of proof of a practice or a rule to the effect that the date of the sale shall be the date of acceptance or approval of the bid by the Court. Proposition (ii) may also be excluded in the absence of anything pointing specifically to reservation of such power by the Court to itself while issuing the direction for sale to the Court Amin. For the petitioner the learned counsel referred to the order dated January 17, 1972 contained on the order sheet passed by the Munsif wherein it is said: "Issue warrant of sale to Amin and sale proclamation to Central Nazir fixing 18-4-1972 for sale and 22-4-1972 for report." It was argued that the direction for report should be taken to imply that the Amin had to seek approval or acceptance from the court before accepting the bid as final In my opinion, the use of the expression "for report" in the context is, at the best, not free from being ambiguous since it may as well denote a direction to submit report as to the compliance made. It will not consequently be safe to infer on the basis of this order alone that there was reservation made by the Court to itself of the power to approve or accept the highest bid. Proposition (iii) enunciated above is, however, plainly attracted in my view to the facts hereof. It will be noticed, as discussed above, that herein the Amin conducting the sale did not in fact conclude the sale by accepting the highest bid, and instead he referred the matter to the Court. Proposition (iii) enunciated above is, however, plainly attracted in my view to the facts hereof. It will be noticed, as discussed above, that herein the Amin conducting the sale did not in fact conclude the sale by accepting the highest bid, and instead he referred the matter to the Court. In Lala Ram's case ( AIR 1970 All 398 ) on the contrary, the acceptance of the highest bid by the Court Amin was itself unqualified and there was nothing by way of approval or acceptance left over for the Court. In a case as the present where the ingredients of proposition (iii) are satisfied, there can be no doubt entertained on the strength of this decision of the Division Bench itself that the date of the sale will be the date of acceptance or approval of the bid by the Court. 11. The reference of the matter by the Officer conducting the sale to the Court contemplated in Proposition (iii) reproduced above may be on a variety of grounds. In a given case the officer may feel that a bid though the highest is inadequate. In another case he might feel that though the highest bid may not be claimed to represent the market value, it may be regarded as worthy of acceptance considering that earlier auctions did not fetch a higher amount. In yet another category of cases he may left to himself be satisfied that the bid is adequate but seek still for the sake of greater certainty or out of sheer hesitation to have it decided by the Court before final acceptance. In all these cases he may declare such bidder as the purchaser and accept one-fourth of the bid money but all that remains tentative. The formalities are completed but still the concluding part is left over to the Court. In none of these cases it is doubted that the Court Amin lacks the power to conclude the sale the question is whether in his discretion he chose to exercise the power in that manner. It would not be correct to say. in my view, that though the power is conferred on a ministerial agency, the Court itself is incapable to exercise that same power despite the contents of Condition No. 3 of Proclamation of Sale Form referred to above. It would not be correct to say. in my view, that though the power is conferred on a ministerial agency, the Court itself is incapable to exercise that same power despite the contents of Condition No. 3 of Proclamation of Sale Form referred to above. In Lal Mahendra Pratap Singh v. Smt. Radhika Devi, 1969 All LJ 1087 also on which the respondents counsel strongly relies, the Division Bench made significant reservation at page 1090 observing, : "We should not (be) understood to have said anything about a case where the Amin who has conducted the auction sale at an outlying place himself does not accept the highest bid but reserves the bids' acceptance by the Court." In Lal Mahendra Pratap Singh's case the appellants tried to derive advantage of the words "Sweekar Kiya Jaya' occurring at the end of the bid sheet prepared by the Amin who conducted the sale. This was repelled on reasoning relevant herein as appearing from para 14 of the judgment; "The report runs over about a page. It is written in Hindi. The scribe has drawn a line at the end of the report. Immediately after the line the Amin has put his signature. Under his signature he has described his designation and put the date as 28-3-68. The words "Sweekar Kiya Jaya" are in it fresh line. The writer, whosoever he may be has started writing these words from near the beginning of the left hand margin of the report. These words are written in such a manner as to create an impression that at all events they were written after the Amin had put his signature. The court below is of opinion that these words had been added subsequently. They are not initialled by the Amin and are below his signature. The finding of the court below appears to be supported by the contents of the report. In the report it is clearly stated that the highest bid was made by the two respondents, that no one gave a higher bid, that the auction was closed in favour of the two respondents, and that one of them who was a stranger auction purchaser, deposited an amount of 25 per cent of the purchase money. In the report it is clearly stated that the highest bid was made by the two respondents, that no one gave a higher bid, that the auction was closed in favour of the two respondents, and that one of them who was a stranger auction purchaser, deposited an amount of 25 per cent of the purchase money. There is no doubt that the Amin had accepted the bids of the two respondents as well as 25 per cent of the purchase money from the stranger auction purchaser and an application from Mukhtaram of the decree- holder auction purchaser for a set off of the purchase money with the decretal amount. As the Amin had himself accepted the highest bids of the respondents, it is difficult to believe that he would leave the acceptance of the bids of the Court thereafter. Assuming, however, that these words have not been interpolated subsequently they do not help the appellants. As we have already indicated, on the acceptance of the bids of the respondents by the Amin there was no occasion for accepting the bids by the Court. The Court could only refuse to accept the bids. Further, the words "Sweekar Kiya Jaya" in the context of the entire report may also mean that the report of the highest bids were to be accepted by the Court." 12. The context in which the words "Ba Ummeed Manzoori" appear in the case before us is. to put it in short, entirely different from the attending circumstances of the reported decision. Condition No. 3 in Form 29 confers discretion including on the officer holding the sale to decline acceptance of the highest bid when in his view the price offered appears clearly inadequate as to make it advisable to do so. Assuming a case where the price offered is not clearly inadequate in his view or he feels constrained taking into account that previous attempts to knock down the property at auction had proved abortive, it does not appear to me that the Amin is precluded from making his acceptance provisional and leaving it to the Court to approve or disapprove as the case may be. True all that is necessary for sale to be complete under O. XXI. True all that is necessary for sale to be complete under O. XXI. R. 84 is that the sale officer should accept the highest hid and declare the purchaser and the purchaser should deposit 25%, of the purchase price, but this always remains subject to the factual position in a given case which may or may not suggest unconditional or unequivocal acceptance of the highest bid on his part. If the acceptance by him is not categorical, the sale cannot he claimed to have taken place, unless the Court accords its approval. This is the position upheld in Bijli Cotton Mills (P) Ltd. (1983 All LJ 1320) (supra) also. Lalram's case ( AIR 1970 All 398 ) was followed therein and it was also noticed that the sale held by the Amin on 15th December, 1980 had been approved by the Court on January 13, 1981, on account of which the date of the sale should be taken to be the date on which the sale officer accepted the highest bid and declared the purchase. This too, therefore, does not detract against the Proposition (iii) referred to above. 13. Stress was laid on respondents' behalf by learned counsel upon the use of the word Nilam in the concluding sentence of the report extracted above. It was argued that the Amin did not use the word Boli or the bid but instead said that the auction was being concluded. To my mind the distinction thus attempted by counsel is without a difference. The auction held was by offer of bids and all that the Amin says is that the acceptance of the highest bid on his part was conditional upon approval by the Court. 14. Argument was also advanced then for the respondent to the effect that the execution Court be deemed to have approved of the sale on May 2, 1972, when the tender of the respondent 2 to deposit the balance of the bid amount was signed vide Paper 86A. The record shows that this was purely as a matter of ordinary routine without prejudice to the right of the other parties and was subject to such objection as may legitimately be raised. The record shows that this was purely as a matter of ordinary routine without prejudice to the right of the other parties and was subject to such objection as may legitimately be raised. There is nothing to show that there was application of mind on the part of the Court at that stage to the details of the auction held on 18th April, 1972, or to the adequacy or otherwise of the highest bid offeredoon that occasion. The respondent 2 was permitted in other words to make the deposit at her own risk. The approval of the Court to the sale cannot be inferred on the basis thereof and, therefore, it may not be contended that the limitation be taken to commence from May 2, 1972 in the alternative. 15. The submission for the respondent also is that the Court could in terms of Condition No. 3, Form 29 pass a negative order declining to accept the highest bid offered at the auction, but there is no power in the Court or a requirement in this behalf to accord approval or make a positive order of acceptance. I am not impressed with this contention either. The discretion conferred under Condition No. 3 may be exercised as well by making an order in the positive which is only another mode to say that the highest bid was not being deprived. The Amin purported to say in effect in his report that the sale shall materialise at the highest bid offered by the respondent 2 in case it were not disapproved by the Court. The Court passed no order either way of acceptance or disapproval until the confirmation of sale which took place under the impugned order dated July 2, 1977, for the first time. In face of the reservation made by the Amin at the time of conducting the same the Court was necessarily called upon to accord its approval in order that the sale could be taken to materialise for purposes of commencement of limitation under Article 127 of the Limitation Act. 16. The law is not in doubt in regard to the position that obtains where in terms of statutory provisions or otherwise the acceptance of a bid by auction sale is only provisional or it is subject to the approval or confirmation from some other authority. 16. The law is not in doubt in regard to the position that obtains where in terms of statutory provisions or otherwise the acceptance of a bid by auction sale is only provisional or it is subject to the approval or confirmation from some other authority. In the case where there can be no final acceptance of the bid by the officer conducting the auction, it can at best be provisional only and a right in the bidder is not created for so long as the final acceptance is not forthcoming vide Excise Commr., U.P. Alld. v. Prem Jeet Singh Gujral, (1984) 1 SCC 270 : AIR 1983 SC 1056 . In State of Haryana v. Lal Chand, (1984) 3 SCC 634 : AIR 1984 SC 1326 the distinction was referred to in Para 16 pointing out that that was not a case where there was mere conditional acceptance of the highest bid of the respondents by the Deputy Commissioner and the Taxation Commissioner at the time of the auction. There is this difference undoubtedly that under the provisions of the Code of Civil Procedure governing sale by auction the Court Amin has, as stated above, the authority to accept the bid as final by himself but then we have again to revert back necessarily to the issue whether he has in the exercise of his powers done so actually or left it for being accepted or approved by the Court. 17. 'Consideration being had to the above, I find that the objection under O. XXI, R. 90 filed by the petitioner could not be dismissed on ground of being barred by limitation. Unfortunately, the appellate Court has not gone into the objection on merits and disposed of the same on the ground of limitation alone. This necessitates a direction to the appellate Court to consider and decide the appeal preferred under O. XLII, R. 1(g), C.P.C. on merits. The appellate court may also investigate whether the petitioner made deposit as required under the proviso inserted by amendment by this Court to O. XXI, R. 90(1). Decree under execution having been passed far back in the year 1958 and the impugned sale having taken place in 1972, it is in the fitness of things that the appeal is taken up and decided expeditiously. 18. The petition accordingly succeeds and is allowed. Decree under execution having been passed far back in the year 1958 and the impugned sale having taken place in 1972, it is in the fitness of things that the appeal is taken up and decided expeditiously. 18. The petition accordingly succeeds and is allowed. The order dated July 31, 1978, passed by respondent 6, the VI Additional District Judge, Deoria (which is Annexure 2 to the Writ Petition) is set aside in so far as it pertains to the dismissal of Civil Appeals Nos. 208 and 209 of 1977 preferred by the petitioner directed against the confirmation of sale consequent upon the rejection of his objection under O. XXI, R. 90. C.P.C. by the execution Court dated July 2, 1977. The respondent is directed to redecide these two appeals on merits in accordance with the law and in the light of the observations contained herein at the earliest. The record received from the Court below shall be sent back immediately. Costs shall be borne by the parties.