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1996 DIGILAW 748 (RAJ)

Ramesh Chand v. Shiv Charan

1996-07-18

ARUN MADAN

body1996
Honble MADAN, J.–This revision petition has been preferred agains the impugned order dated 14/3/96 passed by the learned Addl. District Judge No.1 Bharatpur in execution petition No. 1/92 whereby the Executing Court had extended the time for depositing the balance of the sale amount for satisfaction of the decree in favour of non-petitions No.1. The facts briefly stated are that on 7thof May 1989 preliminary decree was passed regarding the disputed shop premises in question by the Trial Court. A Commissioner was appointed by the Trial Court to go to the site with the direction that all the interested parties shall have the right to bid in respect of the shop in question. It was further directed that the party who makes higher bid, the shop will be sold to the said party, and the sale proceedsshall be distributed amongst the parties to the extent of 1/5th share each. In pursuance of the aforesaid decree non-petitioner No.1 initiated execution proceedings before the Addl. District Judge No.1, Bharatpur. On 14.12.95 the Executing Court appointed a local Commissioner who was directed to get the disputed shop auctioned in the presence of the parties on 24.12.95. The parties were directed tobe present before the local Commissioner on 2.1.96. It has been further averred in the petition that on 4.12.95 when the petitioner visited the site, the auction had already taken place and the higher bid which was made by the Non- petitioner No.1 was accepted. On 17.1.96 the petitioner moved an application before the trial court that he was prepared to participate in the bid and to purchase the disputed shopfor the consideration of Rs. 2 lakhs as he could not be present on the previous occasion on 4.12.95. The Executing Court considering the request of the petitioner fixed a fresh date for auction of the property in question on 25.1.96. It is on the said day that in pursuance of the auction the non-petitioner No.1 made the higher bid of Rs. 2,90,000/- and the said bid was accepted by the Court and the non-petitioner No.1 was directed to deposit 25% of the bid amount i.e. Rs. 72,500/-. (2). On 23.2.96, a day prior to the date fixed for the auction, non-petitioner No.1 moved an application to the Executing Court that since the disputed shop was auctioned in his favour for Rs. 2,90,000/- and the said bid was accepted by the Court and the non-petitioner No.1 was directed to deposit 25% of the bid amount i.e. Rs. 72,500/-. (2). On 23.2.96, a day prior to the date fixed for the auction, non-petitioner No.1 moved an application to the Executing Court that since the disputed shop was auctioned in his favour for Rs. 2,90,000/-, out of which he had deposited 25% of thebid amount, as referred to above, after deducting Rs. 58,000/- his 1/5 th share in the sale proceeds, he being the so-sharer of the property in question, may be permitted to deposit the balance amount. The aforesaid application was dismissed by the trial court on 14.3.96 for the reason that non-petitioner No.1 had not deposited the remaining amount with in the stipulated period of one month and that the TrialCourt was bound by the order of the Executing Court dated 25/1/96 and on 14/3/96 the aforesaid time was subsequently extended by the Executing Court for depositing the balance amount up to 18th of March 1996. It is the said order by which the petitioner is aggrieved and which he has assailed in the revision petition on the grounds of inter alia that since the Executing Court could not go behind decree, theExecuting Court was not justified in extending the time in favour of non- petitioner No.1. (3). In support of this contention advance at the bar learned counsel for the petitioner has placed reliance upon the provisions of Order 21, Rules 84, 85 and 86. As per Sub-Rule 84(1), it is stipulated as under:– ``84(1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of 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 re-sold. Rule 85 and 86 contemplated as under:- ``85. The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property: Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under Rule 72. ``86. The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property: Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under Rule 72. ``86. In default of payment within the period mentioned in the last preceding rule, the deposit may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government and the pro- perty shall be re-sold, and the defaulting purchaser shall forfeit all claims to the property or to any part of the sum for which it may subsequently be sold. (4). A logical interpretation of the rules makes it clear that a sale of immovable property in order to be complete, full amount of the sale price has to be depositedby the auction-purchaser to the officer appointed by the Court who conducted the sale and in default of such deposit, the auction-purchaser will forfeit the amount already made to the concerned authority. In my considered opinion what emerges on interpretation of rule 84 read in consonance with Rule 85 is that merely on payment of 25% of the bid amount no title in the property passes on to the auction-purchaser and the same would be effectively complete only on deposit of the balance amount i.e. 75% of the settled price within the time as may be fixed by the Court. I am further of the opinion that the Court may, in appropriate cases, where bonafides have been contended by the auction-purchaser, provide that the auction-purchaser may not make the payment within the stipulated time where it is due to circumstances beyond his control and the Court may extend the time suitably at its discretion. I am further of the view that in a case where the executing Court does not have the power of jurisdiction to extend the time beyond what is fixed or contemplated by the final decree, it should not extend the same beyond what has been stipulated in the final decree. (5). In this case, admittedly, the time which was fixed by the Executing Court for payment of the sale consideration towards satisfaction of the decree was two months from the date of auction i.e. 25.1.96. (5). In this case, admittedly, the time which was fixed by the Executing Court for payment of the sale consideration towards satisfaction of the decree was two months from the date of auction i.e. 25.1.96. Thus the balance of the sale considera-tion was to be paid by the auction-purchaser within 2 months i.e. upto 24.3.96. On 18.3.96 before the expiry of the stipulation period, auction-purchaser/N.P. No.1 deposited the balance amount of the sale consideration amounting to Rs. 2,17,500/- thereby complying with provisions of Order 21, Rules 84 and 85 CPC, as referred to above. It is further pertinent to mention in this context that the petitioner had notpreferred any appeal against the final decree which recourse was available to him under the law but he had foregone that right and instead preferred this revision petition before this court. The scope of the revision is even otherwise limited under Section 115 CPC and extends only to the correction of the jurisdictional errors as envisaged by the said provisions. (6). Shri Abhay Chaturvedi, learned counsel for the petitioner has placed reliance upon the judgment of the Apex Court in the matter of Manilal Mohan Lal Shah & Ors. vs. Sardar Sayed Ahmed Sayed Mohd. & Anr., (1). This was a case where a stranger auction-purchaser had challenged the sale on the ground of auction payment of the balance of the sale price as required by Order 21 Rules 84 and 85CPC. Since the payment of the balance amount had not been made within 15 days of the sale he had assailed the said rules for the reason of its non-compliance by the auction-purchaser. The Apex Court held that the provisions of Rule are mandatory and the rules do not contemplate that there can be any sale in favour of the purchaser without deposit of 25% of the bid amount at the first instance and thebalance within 15 days thereafter. It was further observed by the Apex Court that the Court is bound to re-sale the property in the event of default. It was further observed by the Apex Court that the Court is bound to re-sale the property in the event of default. In my view, the ratio of this judgment is not applicable to this case for the simple reason that no sale had taken place as on payment of 25% of the bid amount by the auction-purchaser/non-petitioner No.1 since the balance of sale- price which was to be paidby the auction-purchaser as contemplated by the decree was to be done within a period of 2 months and in any case the trial court had not extended the time beyond what was contemplated in the decree which the auction- purchaser had admittedly complied with. (7). In support of his contentions, learned counsel for the respondent has re-lied upon the judgment of the Apex Court in the matter of Mrs. Sandhya Rani Sarkar vs. Smt. Sudha Rani Debi & Ors. (2) and in the matter of Mr. Johri Singh vs. Sukhpal Singh & Ors. (3). (8). In the matter of Mrs. Sandhya Rani Sarkar vs. Smt. Sudha Rani Debi & Ors. (supra), the question which had arisen for consideration of the Apex Court was re-garding a decree passed in a suit for specific performance of a contract for sale of immovable property calling upon the purchaser to deposit the balance of sale consideration within the time stipulated in the decree with super-added condition that in the event of default the suit would stand dismissed. It was held by the Apex Court that it was not a case of preliminary decree. It was not possible to entertainthe contention that the orders extending the time to deposit the balance of sale consideration, would result in amending the decree and since the appeal is preferred after such last amendment, the appeal would be in time. No conveyance deed has been executed in favour of the purchaser on receipt of the consideration and hence no final decree had been passed and it could not be said that the court did not have the power to extend the time for depositing of balance of sale consideration, and that it would not result in amending the decree. (9). No conveyance deed has been executed in favour of the purchaser on receipt of the consideration and hence no final decree had been passed and it could not be said that the court did not have the power to extend the time for depositing of balance of sale consideration, and that it would not result in amending the decree. (9). I have heard the learned counsel for the parties at length and also perused the impugned order on the record and in my considered opinion the order dated 14.3.96 passed by the Executing Court does not call for any interference by this Court. There is no error, illegality or impropriety committed by the trial court in its impugned order. There is no merit in the revision petition and the same is accor-dingly rejected. No order as to costs.