Bhudeo Sharma v. Ram Kali — 1992 DIGILAW 93 (ALL)

JUDGMENT : B.L. Yadav, J. This is auction purchaser's Execution Second Appeal, u/s 100 read with Section 47 of the CPC 1908 (for short the code) against the judgment dated 1-4-1971 rendered by the Distt. Judge Bulandshahr, dismissing the appeal and confirming the judgment dated 20-2-70 passed by the Civil Judge, allowing the objection of the judgment-Debtor, the Respondent No. 1, and setting aside the auction sale dated 21-2-1968 in favour of the Appellant and recalling the order dated 14-9-1968, dismissing the objection of the judgment debtor in default under Order 21 Rule 90 of the Code and also the order dated 24-9-1968, confirming sale in favour of the Appellant, the auction purchaser 2. The facts leading to the present appeal are admitted and they are these. To satisfy the decree against the judgment debtor, the Respondent No. 1 a proclamation was drawn up, in accordance with the procedure contemplated by Rule 66 of Order 21 of the code and the same was not objected to by the judgment debtor, the objector, the Respondent No. 1 The intended auction sale of the properties of the judgment Debtor to be held on 6-2-1968 was duly proclaimed The Amin went on spot on 6-2-1968 but no bidder turned up, and even judgment debtor objector was absent. The sale warrant had to be returned unexecuted and the auction sale was adjourned. Under the orders of the Execution Court after beat of drum but without drawing up fresh proclamation as contemplated by Rule 66 of Order 21, the property was sold on a public auction on 21-2-1968 and the Appellant being highest bidder purchased the same. 3. The judgment-Debtor the objector, the Respondent No. 1 filed an objection under Rule 90 of Order 21 to set aside the auction sale dated 21-2-1968 on the ground of material irregularity in publishing and conducting the sale, in as much as sale proclamation was not drawn in accordance with Rule 66 of Order 21, nor procedure under Rule 54 were followed. 4. Auction purchaser, the Appellant contested the objection of the judgment-Debtor alleging that he was not a party to the decree, rather a stranger auction purchaser and must remain unaffected by reversal of order or decree. 4. Auction purchaser, the Appellant contested the objection of the judgment-Debtor alleging that he was not a party to the decree, rather a stranger auction purchaser and must remain unaffected by reversal of order or decree. Earlier the entire procedure under Rule 66 of Order 21 was followed before the date fixed for auction to be held on 6-2-1968 but no objections were raised by the judgment-Debtor and he was not even present on that date, hence fresh proclamation as contemplated under Rule 66(2) of Order 21 was not necessary and in view of Allahabad High Court Amendment in Rule 69(2) the fresh proclamation was not necessary and could be dispensed with particularly when the judgment-Debtor failed to attend the auction sale in answer to the notice to the judgment debtor as provided under Rule 66(2) of Order 21, and the same was confirmed on 24-9-68 after dismissal of the objections of judgment-Debtor. His title matured u/s 65 of the Code. The Allahabad High Court Amendment to Rule 66 of Order 21 ought to be noticed. It is to the effect. High Court Amendment Allahabad: Substitute for the Sub-rule (2) (2) Where a sale has been once adjourned under Sub-rule (1) a fresh proclamation under Rule 67 shall be made unless judgment-debtor consents to waive it Provided that where the adjournment is for a period not longer than thirty days from the date originally fixed for sale no fresh proclamation is necessary : Provided also that the court may dispense with the consent of any judgment-debtor who has failed to attend in answer to a notice issued under Rule 66. 5. The learned Civil Judge by his judgment and order dated 20-2-1970 allowed the objection of the judgment debtor and set aside the auction sale in favour of the stranger auction purchaser. The auction purchaser's appeal was dismissed by the judgment dated 1-4-1971. Against these judgments present execution second appeal has been filed, by the auction purchaser. 6. Mr. 5. The learned Civil Judge by his judgment and order dated 20-2-1970 allowed the objection of the judgment debtor and set aside the auction sale in favour of the stranger auction purchaser. The auction purchaser's appeal was dismissed by the judgment dated 1-4-1971. Against these judgments present execution second appeal has been filed, by the auction purchaser. 6. Mr. C.P. Srivastava, the learned Counsel for the Appellant urged that the Appellant was a stranger auction purchaser and he was not a party to the decree and was not to lose his title after confirmation of the auction sale as a consequence of dismissal of the objection of the judgment debtor in default and was entitled to the benefit of Section 65 of the Code The Allahabad High Court Amendment to the provisions of Order 21 Rule 69(2) indicates that when the sale is adjourned for a period not longer than thirty days from the date orginally fixed for sale, no fresh proclamation is necessary and the court may dispense with the consent of the judgment debtor, who has failed to attend in answer to a notice issued under Rule 66 The word 'may' in the proviso of High Court Amendment was used as mandatory and not directory. The courts below erred in holding otherwise. Reliance was placed on Janak Raj Vs. Gurdial Singh and Another, AIR 1967 SC 608 . 7. Sarvsri M.C. Singh and B. Sahai, the learned Counsel for the Respondent on the other hand urged that Section 65 of the code was not applicable and fresh proclamation was necessary In view of Rule 69(2) and Rule 67 of Order 21. The word 'may' in the proviso to the High Court Amendment was directory. The judgments of the courts below were correct. No substantial questions of law as required by Section 100 of the Code were involved. The Execution second Appeal deserves to be dismissed. Reliance was placed on Chinnamal and others Vs. P. Arumugham and another, (1990) 1 SCC 513 , Sardar Govindrao Mahadik and Another Vs. Devi Sahai and Others, (1982) 1 SCC 237 . 8. No substantial questions of law as required by Section 100 of the Code were involved. The Execution second Appeal deserves to be dismissed. Reliance was placed on Chinnamal and others Vs. P. Arumugham and another, (1990) 1 SCC 513 , Sardar Govindrao Mahadik and Another Vs. Devi Sahai and Others, (1982) 1 SCC 237 . 8. Having heard learned Counsel for the parties, the point that falls for determination is as to whether a stranger auction purchaser, not a party to the decree is protected against the vicissitudes of fortunes of the litigation and does not lose his title matured on confirmation of the sale by subsequent reversal of the order, particularly in view of Section 65 of the Code. 9. The property of the judgment debtor, the Respondent No. 2 were put to auction sale and the proclamation was drawn up as provided under Rule 66(2) of Order 21 after notice to the decree holder and judgment debtor, the Respondent No. 2 indicating the time and place of sale and specifying as fairly and accurately as possible the property to be sold, and also indicating the amount for recovery of which the sale was ordered and other particulars which the court considered material. Such proclamation was made as indicated under Rule 67 and in the manner prescribed by Rule 54(2) of Order 21. The order also required the judgment debtor the Respondent to attend the court on specified date 6-2-86 was the dale fixed for auction sale but the judgment debtor did not turn up inspite of the notice of proclamation in view of Rules 67 and 54 of the rules requiring the judgment debtor to attend the court on specified date, particularly the date fixed for auction sale. In the absence of judgment debtor and as no bidder came on the date fixed i.e. 6-2-1968, the Amin had no option but to return the sale warrant and another date fixed was 21-2-1968 well within 30 days as required by the Allahabad High Court Amendment incorporated in Rule 69 (and substituted for Sub-rule 2 of Rule 69), which has been quoted earlier. 10. Before interpreting Rule 69(2), Rule 66 and Rule 54 etc. 10. Before interpreting Rule 69(2), Rule 66 and Rule 54 etc. of Order 21 as amended by our own High Court it is better to notice certain cardinal principles of interpretation pertaining to procedural law It is well known that the rules themselves are not the end, rather they are just means to achieve the supreme end i.e. justice These rules need not be taken to be hurdles to attainment of supreme goal. The constructions of rules of procedure are to be justice oriented and it must prevent miscarriage of justice. Such interpretation must be placed so that it may be consistent with the aims and objects of those rules as reflected by the language employed and that interpretation which is rigid and negatives the cause of justice has to be avoided. There must be pragmatic approach which needs to be adopted while construing the purely procedural provision- Ex Naib Subedar Katar Singh Vs. Union of India (UOI) and Others, (1989) 2 SCC 104 Supp. 11. The auction sale could not be held on 6-2-1968 and the warrant was returned by the Amin as no bidder turned up and even the judgment debtot also did not appear. It was nothing else than the adjournment of sale to 21-2-68 within 30 days, as contemplated by Sub-rule 2 of Rule 69 as amended by our High Court The Sub-rule 2 of Rule 69 provides (as amended by our High Court) that where a sale has been once 'adjourned' under Sub-rule 1 and fresh proclamation under Rule 67 shall be made unless judgment-debtor consents to waive it, provided that where the adjournment is for a period not longer than thirty days from the date originally fixed for sale no fresh proclamation is necessary, provided also that the court may dispense with the consent of any judgment-debtor who has failed to attend in answer to a notice issued under Rule 66. In the present case as the judgment debtor failed to attend in answer to the notice issued under Rule 65 hence the court has power to dispence with the consent of the judgment debtor. 12. In the present case as the judgment debtor failed to attend in answer to the notice issued under Rule 65 hence the court has power to dispence with the consent of the judgment debtor. 12. It was contended by the learned Counsel for the Respondent that after first date i.e. 6-2-68 next date fixed for auction sale was 21-2-68 just after 15 days and well within 30 days as contemplated by Sub-rule 2 of Rule 69 but this was not to be taken as an adjournment of auction sale fixed on 6-2-68 but nothing positive could be indicated as to why it was not an adjournment. The legislature has very wisely employed the expression "adjournment'. The oral adjournment is not statutorily defined nor it appears to have been judicially defined. In that event, in view of State of Orissa and Others Vs. Titaghur Paper Mills Company Limited and Another, AIR 1985 SC 1293 . It is now well settled, that the dictionary meaning of word cannot be looked at where that word has not been statutorily defined or judicially interpreted but where there is so such definition or interpretation, the court may take the aid of dictionaries to ascertain the meaning of a word in common parlance. 13. It would not be out of place to quote what Samuel Johnson, great English Poet, Critle and Essayst & Dictionary maker has said about the use of dictionaries. The dictionaries are like watches, worth is better than none and the best cannot be expected to go quite true. Every honest lexicographer agrees. knowing that no matter, keenly he strives to make his book 'go true' he would inevitably loose the battle with what might be called linguistic indeterminacy (since indeterminacy will be the prime fact of his professional life, he will often be tempted to deny and resent, like the grammarians of the 17th and 18th centuries, the radical instability of languages. 14. According to the New Lexicon Webster's Dictionary 'Adjourn' means to suspend, to defer with a view to lateron resumption. According to Webster's Third New International Dictionary, the word-adjourn', means to suspend continuance of, put off further proceedings of either indefinitely or untill a later stated time. According to Shorter Ox Ford English Dictionary Adjourn means to put off to suspend proceedings, to defer or put off. According to Webster's Third New International Dictionary, the word-adjourn', means to suspend continuance of, put off further proceedings of either indefinitely or untill a later stated time. According to Shorter Ox Ford English Dictionary Adjourn means to put off to suspend proceedings, to defer or put off. According to New Collins Concise English Dictionary word 'adjourn' means to postpone or be postponed especially temporarily. 15. It is thus obvious that on 6-2-68 matter for auction sale was just suspended or deferred or adjourned and the next date fixed was 21-2-68 with the order of the Court. As the judgment debtor failed to attend in pursuance of the notice under Rule 66, what Rule 66 requires was that proclamation was after notice of judgment debtor decree holder and it shall state time and place of the sale It is thus clear that time and place for sale was known to the judgment-debtor in pursuance of the notice served upon him but he did not turn up. Rule 54 also require the judgment debtor to attend the court on specified date. The proclamation was made in view of Sub-rule 2 of Rule 54 and by beat of drum the announcement was made and other details were also followed. In this view of the matter, the procedure contemplated under Rule 69 sub Rule 2 and Rule 67 for making of proclamation and Rule 66 providing for proclamation of sales by public auction and Rule 54 providing for attachment of immovable property were followed and auction sale was adjourned on 6-2-1968 to 21-2-1968 just after 15 days, the Appellant being the highest bidder the sale was concluded in his favour; but before the sale could be confirmed the objections of the judgment debtor under Rule 90 of Order 21 was dismissed in default on 14-9-68 and as there remained no objection under Rule 90 of Rule 21, hence auction sale in favour of Appellant who was stranger to the decree, was confirmed on 24-9-68 but later on the order dated 14-9-68 dismissing the objection of judgment debtor under Rule 90 was recalled. As a resuit of vicissitudes of fortunes of the litigation whether stranger auction purchaser is to be affected. As a resuit of vicissitudes of fortunes of the litigation whether stranger auction purchaser is to be affected. The auction purchaser was not party to the decree nor he was decree holder rather he was just bonafide purchaser has nothing to do as to what would happen to the order dismissing the objection under Rule 90 in default. He was not a party to the objections filed by the judgment debtor under Rule 90. 16. Section 65 of the Code provides the purchasers title in such contingencies which runs as under: 65. Purchaser's title. Where immovable property is sold in execution of a decree and such sale-has become absolute, the properly shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. A bare reading of the aforesaid provision would make it manifest that there is distinction created by the legislature in respect of a private sale of immovable property where the property vests in the purchaser from the time and date of sale, and the purchaser of property at the auction sale which is a compulsory sale, does not become absolute title holder until the sale has been confirmed under Rule 94 of Order 21. Ft is upon such confirmation that the sale becomes absolote. (Vide Order 21 Rule 92). After the sale has become absolute, a certificate is granted by the Court to the purchaser which is called certificate of sale (Vide Order 21 Rule 94). This certificate bears a date from which the sale become absolute. In accordance with the procedure prescribed under Rule 92 and 94 of Order 21 a sale becomes absolute only upon confirmation of that sale and the property does not vest in the purchaser until the sale has become absolute. But in the view of the provisions of Section 65 the legislature has conferred right on the auction purchaser by creating a legal fiction to the effect that on the sale having become absolute, the property shall be deemed to have vested in the purchaser from the time when the property was sold and not from the date when the sale becomes absolute. To put it differently the property vests in the auction purchaser with retrospective effect i.e. from the date of purchase in the present case 6-2-1968. To put it differently the property vests in the auction purchaser with retrospective effect i.e. from the date of purchase in the present case 6-2-1968. Even though the sale was confirmed on 24-9-68 after disposal of objection under Rule 90 of Order 21. The question is as to whether the special right created by a legal fiction within the provisions of Section 65 can be negative even after recalling of the order dated 14-9-68 dismissing the objection under Rule 90 in default. The auction purchaser was not a party to the decree so as to be affected by the subsequent order passed on the objection of the judgment debtor under Rule 90. By enacting Section 65 the Legislature appears to be conscious that the rights of the auction purchaser have not easily to be set at naught just by variation of an order in different stages in litigation. In my opinion, the provisions of Rules 92 and 94 etc of Order 21 providing the sale to become absolute where no application was made under Rule 90, by the judgment debtor and where the application was made but was disallowed, as in the present case, the objection by the judgment debtor was dismissed in default on 14-9-68, the court shall make an order confirming the sale and thereupon the sale shall become absolute. In the present case also the sale become absolute on 24-2-68 by the order of the Court. 17. In AIR 1928 265 (Nagpur), Full Bench held that a private satisfaction of a decree certified In court after the sale of immovable property has been held and before the confirmation of the sale is ordered, does extinguish and decree and prevent the court from confirming the sale in favour of the auction-purchaser, if he be the decree holder himself, but it does not extinguish the decree and prevent the court from confirming the sale, where a third person has purchased the property bona fide at the auction sale. 18. In S. Chokalingam Asari Vs. 18. In S. Chokalingam Asari Vs. N.S. Krishna Iyer and Others, AIR 1964 Mad 404 , Division Bench held that if the purchaser were to lose the benefit of his purchase on the contingency of the subsequent reversal of the decree, there will be no inducement to the intending purchasers to buy at execution sale and consequently the property would not fetch its proper price at such sales, and the net result would be that the judgment debtor would be the ultimate sufferer. This wise policy of protecting the title of the stranger purchaser, even though in any individual case it may work some hardship, is clearly conceived in the interests of the general body of judgment-debtors so that purchasers will freely bid at the auction without any fear of later objection. But in the case of a decree-holder purchaser, the rule is different and in that case the purchase is subject to the final result of the litigation between the decree holder and the judgment debtor. 19. In Janak Raj Vs. Gurdial Singh and Another, (supra),, it was held that the Appellant auction purchaser was entitled to a confirmation of the sale notwithstanding the fact that after the holding of the sale the decree had been set aside. The policy of the Legislature seems to be that unless a stranger auction purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified. 20. In the present case also as the Appellant was stranger to the decree, consequently consistent with the policy of legislature, as subsequently enacted by Section 65 of the Code also, his interest has to be protected and his interest must not depend on the vicissitudes of the fortunes of litigation turning upon in favour of the judgment debtor or otherwise. 21. In Sardar Govindrao Mahadik and Another Vs. 21. In Sardar Govindrao Mahadik and Another Vs. Devi Sahai and Others, (supra), it was held that if the auction purchaser is an outsider or a stranger and if the execution of the decree was not stayed of which he may have asssured himself by appropriate enquiry, the court auction held and sale confirmed and resultant sale certificate having been issued would protect him even if the decree in execution of which the auction sale has been held, is set aside This proceeds on the footing that the equity in favour of the stranger should be protected and the situation is occasionally reached on account of default on the part of the judgment debtor in not obtaining stay of the execution of the decree during the pendency of the appeal. 22. As the present Appellant was stranger, being the highest bider was auction purchaser on 21-2 68 and his auction sale was confirmed on 24-9-68 even if the order dated 14-6-68 dismissing the objection of the judgment debtor under Rule 90 in default was recalled that would not make any difference. As the equity in favour of stranger is protected, even if what to say the objection by judgment debtor, the decree itself might have been reversed, requiring no execution, nevertheless, the interest of auction purchaser was to be protected. In view of public policy vis-a-vis auction purchaser decree holder and judgment debtor, the case of Sardar Govindarav Mahadik v. Devi Sahai (supra) is based on different facts and Is of no assistance to the Respondents. 23. The case of Chinnamal and others Vs. P. Arumugham and another, (supra), relied upon by the learned Counsel for the respondent, the judgment debtor, was also of no assistance rather it helps the Appellant. In that case also it was held that the stranger auction purchaser who is not party to the decree is protected against the vicissitudes of fortunes of the litigation and remains unaffected and does not lose title to the property by sub-sequeot reversal or modification of the decree. 24. In that case also it was held that the stranger auction purchaser who is not party to the decree is protected against the vicissitudes of fortunes of the litigation and remains unaffected and does not lose title to the property by sub-sequeot reversal or modification of the decree. 24. I am accordingly of the opinion that as the Appellant was a stranger auction purchaser, and he being the highest bidder purchaser the property at the auction sale on 21-2-68, even if the order dated 14 9-68 dismissing the objection of the judgment debtor in default was recalled subsequently, but the confirmation of the auction sale was made on 24-9-68 in favour of the Appellant who was not the decree holder nor a party to the decree, consequently being not a party to the decree, his interest must be protected even against the vicissitudes of fortunes of litigation and remains unaffected even though subsequently the order dismissing the objection of judgment debtor in default was recalled. This rule is based on legal and equitable considerations. There is a distinction between a stranger auction purchaser and a decree holder purchaser who himself purchases in execution of his own decree which is afterwards modified or reversed. Where the decree holder himself is auction purchaser, in case of reversal of modification of the decree he is affected but not a stranger auction purchaser. In my considered opinion a stranger auction purchaser not party to the decree is protected against the vicissitudes of fortunes of the litigation and remains unaffected and does not lose title to the property by subsequent reversal or modification of the decree itself. 25. The next question is whether the question aforesaid can be said to be a substantial question of law as contemplated by Section 100 of the Code which confers jurisdiction on the High Court for interference in the second appeals. 26. In fact the substantial question of law ordinarily means a question which directly and substantially affects rights of the parties and which has not been finally settled by the Supreme Court or the High Court. 26. In fact the substantial question of law ordinarily means a question which directly and substantially affects rights of the parties and which has not been finally settled by the Supreme Court or the High Court. Where the question was about the interpretation of statutory and procedural provisions of certain Act or the Code, it certainly involves the substantial question of law In the present case the question was about the interpretation of Rules 66, 67 and 69(2) of the Order 21 and Section 65 of the Code as amended by our own High Court, certainly involves a substantial question of law which has incorrectly been decided by the courts below. It is therefore a good ground where the jurisdiction of this Court can be exercised. 27. In view of the premises aforesaid the judgment and decree of the courts below cannot be sustained. In the result this Execution Second Appeal succeeds and is allowed with costs throughout. Judgment and orders of the courts below dated 1-4-1971 and dated 20-2-1970 are set aside. The objections of the judgment debtor, against the auction sale and its confirmation are rejected the irresistible conclusion is that the confirmation of the auction sale in favour of the auction purchaser, the appellant is maintained.