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Allahabad High Court · body

1985 DIGILAW 840 (ALL)

Mohammad Hanif v. Ram Datta Mal

1985-09-11

N.N.MITHAL

body1985
JUDGMENT : N.N. Mithal, J. This is decree-holder's second appeal questioning the legality of an order by which auction sale has been set aside by the courts below. 2. In pursuance of a money decree against three judgment debtors, nine plots belonging to Defendant No. 2 Nanwa pertaining to khata No. 2(2) having an area of 4-16-0 bighas were attached on 8-3-1968. When notices under rule 66, Order 21 were Issued certain objections filed by the Respondents as purchasers from the J.D. were dismissed and the property was ultimately ordered to be put up for auction on 7-11-1969, on that dale one Aziz holding special power of attorney from the decree holder participated in sale proceedings on his behalf but it was not accepted by the court and was set aside. On 10-3-70, the next date also the decree holder remained absent but the aforesaid Aziz again purported to represent him. As there was no other bidder the bid made by Aziz, ostensibly for the decree holder, was accepted for Rs. 1615.49 i.e. the same amount as was due under the decree being executed. 3. Objections under Order 21 Rule 20 CPC were filed against this auction sale but were rightly dismissed by the courts below as being beyond time. The executing court, however, cancelled the sale in exercise of its inherent powers for reasons recorded by it as it thought that it was an abuse of the process of the court. The appellate court also upheld the decision The Appellant now seeks to challenge the finding on the plea that courts have acted illegally by invoking inherent powers in this case. 4. The main ground urged on behalf of the Appellant is after having found that the objection by the Respondents was barred by time, inherent powers could not have been exercised by the court in view of specific remedy provided in the code for seeking cancellation of an auction sale. It is now well recognized that the courts have ample reserve of power to do justice. Such a power is inherent in the courts even in those cases where specific provision exists in the Code of Civil Procedure. The only limitation being that there should be no conflict with the provisions of the Code. It is now well recognized that the courts have ample reserve of power to do justice. Such a power is inherent in the courts even in those cases where specific provision exists in the Code of Civil Procedure. The only limitation being that there should be no conflict with the provisions of the Code. The principle on which the courts function is not that all procedure not sanctioned by law is prohibited but that any procedure which is not prohibited by law is permissible for meeting the ends of justice. The only guiding principle for exercise of this power is that must be for meeting the ends of justice. Therefore, it must be held that despite clear provision the court still possess ample reserve of its inherent powers to do what would meet the ends of justice in a given case. 5. Dehors the objections raised by the Respondents and the evidence led by the parties in that behalf, I still find material that is prima facie sufficient to prove that the auction sale was invalid. Firstly, under the special power of attorney (paper No. 90-A) the decree-holder had authorised Aziz to re-present him only in the auction sale fixed for 7-11-1969. Aziz could have no power to represent the decree holder on 10-3-70, the date on which the auction sale in question actually took place. Only one bid had been recorded and that was made by Aziz on behalf of the decree holder. Since the authority given to Aziz was under a special power of attorney for a particular date, it ceased to have any effect after that date. No fresh authority was given by the decree holder to Aziz to represent him in the auction-sale fixed for 10-3-1970. Hence any bid made by him would be illegal and totally unauthorised. This leaves no valid bid at all for auction-sale held on 10-3-70 and there was thus no question of accepting any bid. 6. Secondly, by amendments to Order 21 in this High Court Rules 106-A to 140 have been added. Rule 110 of Order 21 is in the following terms: The result of the inquiry under Rule 66 shall be noted in an order made for the purpose by the presiding judge in his own handwriting. 6. Secondly, by amendments to Order 21 in this High Court Rules 106-A to 140 have been added. Rule 110 of Order 21 is in the following terms: The result of the inquiry under Rule 66 shall be noted in an order made for the purpose by the presiding judge in his own handwriting. The court may in its discretion adjourn the inquiry, provided that the reasons for the adjournment are stated in writing and that no more adjournments are made than are necessary for the purpose of inquiry. 7. From the above rule, it will be clear that after the notice u/s 66 had been issued by the court it must set out to inquire and settle the terms of the sale proclamation. The terms finally settled have to be specifically recorded by the presiding judge in an order in his own handwriting. In the present case the record does not show if any such inquiry was actually held by the court nor is there an order in the own baud writing of the presiding Judge indicating the terms settled for the sale proclamation. It is clear violation of Rule 110. The Rule is very salutary and the whole idea behind it to ensure that the court must appear to have applied its mind in settling the terms of sale proclamation. The sale of property in a court auction is a serious matter and lot of sanctity is attached to it. The court must therefore examine whether the property which is to be put up for auction sale should be sold in its entirety or only a part thereof would suffice for recovering the amount due. The court must also examine as to what other liability or defects of title the property suffers from. If this is done, the auction purchasers would become aware about the true position of the property to be auctioned and enable them to assess the true worth thereof. The violation of this rule, therefore, cannot be taken lightly and is likely to result in serious consequences. 8. As has been noticed above there has been a complete violation of Rule 110 of Order XXI CPC in the present case and it is not possible to sustain the auction sale in dispute despite such violations. The violation of this rule, therefore, cannot be taken lightly and is likely to result in serious consequences. 8. As has been noticed above there has been a complete violation of Rule 110 of Order XXI CPC in the present case and it is not possible to sustain the auction sale in dispute despite such violations. Although for significantly different reasons, I find that the auction sale was rightly set aside in exercise of inherent powers, I must hold that the order under appeal does not require any interference by this Court. 9. In the result, the appeal fails and it is accordingly dismissed with costs.