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1988 DIGILAW 118 (BOM)

S. A. N. Engineering & Locomotive Co. Ltd. v. Gujarat State Financial Corporation & another

1988-03-28

A.D.TATED

body1988
JUDGMENT Tated A.D., J.:—This revision is directed against the order dated 28th December, 1984 passed by the learned District and Sessions Judge, Dadra Nagar Haveli, Silvassa (Mr.R.G. Sindhakar), dismissing the application of the petitioners-auction purchasers for delivery of possession of the property which was purchased by them in the auction sale held on 12th June, 1984 (under the orders of the learned District Judge) and it has been confirmed on 23rd July, 1984. 2. The respondent No. 1 Corporation/decree-holder filed an application under section 31 of the State Financial Corporation Act, 1951, against the respondent No. 2 partnership firm/judgment-debtor for sale of the mortgage property. The learned District Judge granted the application and sold the property by public action on 12th June, 1984. The petitioners-auction purchasers purchased the said property in the auction for the amount of Rs. 3,00,000. The learned District Judge confirmed the auction sale on 23rd July, 1984 and issued sale certificate in favour of the auction purchasers. Thereafter the auction purchasers applied for delivery of possession of the property which they had purchased in auction. The learned District Judge issued notices to the decree-holder and the judgement-debtor. The decree-holder by its reply stated that it had no objection if the auction purchasers' application for possession of the property was granted. The judgment-debtor opposed the said application and contended that the property belonged to the National Small Industries Corporation and Receiver had been appointed by the trial Court and, therefore, the auction purchasers' application for possession of the property was liable to be rejected. 3. The learned District Judge by his order dated 28th December, 1984 held that under the provisions of the State Financial Corporations Act, 1951, he could sell the mortgage property, however, he had no powers to order delivery of possession of the property sold in the auction. The attention of the learned District Judge was drawn to the provisions of sub-section (8) of section 32 of the said Act, but in his opinion these provisions did not enable him to deliver possession of the property sold as per the provisions of section 31 of the said Act. The procedure to be followed on the application under section 31 is laid down in section 32. Sub-section (8) of section 32 reads thus : “32(8). The procedure to be followed on the application under section 31 is laid down in section 32. Sub-section (8) of section 32 reads thus : “32(8). An order of attachment or sale of property under this section shall be carried into effect as far as practicable in the manner provided in the Code of Civil Procedure, 1908, for the attachment or sale of property in the execution of a decree as if the Financial Corporation were the decree-holder.” The above provisions are very clear regarding the applicability of the provisions of the Code of Civil Procedure, 1908, to the attachment and sale effected by the District Judge under the provisions of section 31. When a District Judge is empowered to attach and sell the property and also to confirm the sale and issue sale certificate to the auction purchaser, it is inconceivable that the District Judge has no authority under present case the petitioners-auction purchasers paid the full amount of Rs. 3,00,000/- towards the purchase price and sale in their favour was confirmed and sale certificate was issued. Therefore, it follows, as a matter of course, that the auction purchasers are entitled to possession of the property they have purchased and the learned District Judge has no power to deliver possession of the property to the auction purchasers. 4. Consequently, I find that the learned District Judge was not right in dismissing the application of the petitioners-auction purchasers for delivery of possession of the property. 5. In the result, the revision succeeds and it is allowed and the rule is made absolute. The order of the learned District Judge dismissing the application of the petitioners-auction purchasers for delivery of possession of the property is set aside. The learned District Judge shall proceed to pass orders in accordance with law indicated above. The necessary orders for delivery of possession of the property shall be passed as expeditiously as possible. The respondent No. 2/judgment-debtor shall pay the cost of the petition. The writ shall be issued as early as possible. Revision allowed.