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2000 DIGILAW 758 (KAR)

GEETABAI v. STATE BANK OF INDIA

2000-11-20

H.N.TILHARI

body2000
H. N. TILHARI, J. ( 1 ) HEARD Sri B. R. Prasanna, learned Counsel for the revision petitioner. Notice in this petition has been issued to all the respondents. ( 2 ) RESPONDENTS Nos. 2 and 3 are served and service on them has been held sufficient. The respondent No. 2 has not appeared. ( 3 ) AN application under Order 21, Rule 72 (3) had been filed by the revision petitioners for setting aside of the execution sale. The Court below rejected the application. The applicant who had moved the application for setting aside of the sale has come up before this Court and filed the Civil Revision. That in para 3 of his objections/application u/o. 21 Rule 72 (3) CPC it has been alleged that Sy. No. 35 of Hankuni Village put for auction has been the ancestral property and it is asserted, the said property could not be put for auction. Their further plea is that if the sale is held, the minors will be put to harassment and their shares will be affected. The Execution Court rejected the application and did not decide the question whether the property subject-matter of revision petition is ancestral property. That the applicants claimed that they had the right in the said land by birth and they were entitled to separate possession and their share could not be sold. But the said question was not decided or considered and was left for being decided in the separate suit for share. The Court should have considered that aspect of the matter. But without applying his mind, prima facie, for the purpose of execution case, the Court rejected the application. A contention has been raised on behalf of the revision petitioners that for non-compliance with the provisions of the Order 21, Rule 64 also the sale itself has been null and void. ( 4 ) THE learned Counsel for the respondent contended that the really judgment-debtor had not raised this plea nor have the present applicants raised this plea before the trial Court and so this should not be considered. ( 4 ) THE learned Counsel for the respondent contended that the really judgment-debtor had not raised this plea nor have the present applicants raised this plea before the trial Court and so this should not be considered. The learned counsel contended that the application made by the judgment-debtor has been rejected and the sale has been confirmed in 1997 and therefore this Court should not enter into the plea raised, even if it is shown to be going to the root of the jurisdiction of the Court, because once the sale has been confirmed it has become final. ( 5 ) THE point is a short one and I do not think, the proceeding should be allowed to linger. There is no doubt about the proposition of the law that jurisdiction of this Court u/s. 115 is confined to jurisdictional error. In the present case, the revision petitioners claimed interest in the property alleging that the property is ancestral property and they claimed the interest as coparceners. The plea has not been negatived by the Court. It has only said that the matter may be decided on the suit for declaration of title which has been filed. In my opinion, the Court below committed an error in not considering this question at least in the context of property, request made for execution and auction thereof. If these persons have interest, and the property of their interest have been sold in execution invalidly, the title would not pass, in respect of that share, to the transferee even in execution, because in execution, only the property and interest in property of judgment-debtor could be put to auction sale. Apart from that there is another illegality committed in the exercise of the jurisdiction by the Court while conducting the execution proceeding and in the conducting of sale, by execution court by having completely ignored provision of Order 21, Rule 64 CPC as admitted by the counsel for the respondent as well. The Court had not, before proceeding to put the property for sale or auction, considered and decided the question as to whether the decree could be satisfied by sale of a portion of the property or the entire survey number. The Court had not, before proceeding to put the property for sale or auction, considered and decided the question as to whether the decree could be satisfied by sale of a portion of the property or the entire survey number. I am informed that the decretal amount could be realised by sale of a portion of that property there was no need to make sale of entire survey number i. e. , bearing an area of 24 acres 4 guntas. Order 21 Rule 64 of the CPC reads as under :". . . ANY Court, executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same. "in the context of Order XXI, Rule 64, it has been held by the Hon'ble Supreme Court in the case of "takkaseela Pedda Subbareddy v. Pujari Padmavathamma in AIR 1977 SC 1789 as under :". . . . Under this provision, the executing Court derives jurisdiction to sell property attached only to the point at which the decree is fully satisfied. The words 'necessary to satisfy the decree' clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. In other words the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the Court should stop at this stage. "in the instant case, their Lordships further observed:"therefore, we are clearly of the opinion that the executing Court was not justified in the facts and circumstances of the present case in selling the properties situated in village Guddipadu. The fact that the judgment-debtor did not raise any objection on this ground before the Executing Court is not sufficient to put him out of Court because this is a matter which went to the very root of the jurisdiction of the executing Court to sell the properties and non-compliance with the provisions of Order 21, Rule 64 of the Code was sufficient to vitiate the sale so far as the property situated in the village Gaddipadu is concerned. "by taking this view the Apex Court has held and laid down the law to the effect that provisions of Order 21, Rule 64, CPC are mandatory and a decision on the question is necessary as to whether the entire property attached or a portion thereof has to be put to auction sale and whether the entire property or a portion of the property has to be put to auction sale for satisfying the decree. Without decision of that question, the Court does not get jurisdiction to put the property to auction sale and a sale held in execution proceedings with (without) due compliance of Order XXI, Rule 64 can be said to be illegal, null and void and inoperative. As in this case, it is admitted by the learned Counsel for the respondent that the decision has not been made on the question to what extent the property had to be put for auction and to what extent of sale of the property was necessary to satisfy the decree, the sale of entire 24 acres and odd of land in Sy. No. 35 can be and has to be and is held to be illegal, null and void. When I so view, I further find support from the decision of the Lordships, Supreme Court in the case of Ambati Narasayya v. M. Subbarao in AIR 1990 SC 119 , wherein their Lordships followed the earlier decision and set aside the sale in that case and directed the Execution Court to put the appellant before it in possession of the land in question and to refund the sale amount to the auction-purchaser if it is in deposit and thereafter directed it to proceed to execute the decree in accordance with law. In this case, their Lordships laid it down that there is a duty cast upon the Court to sell only such property or such portion thereof as is necessary to satisfy the decree, and the mandate of the legislature which cannot be ignored. A transaction or an order which is void and without jurisdiction cannot be validated by order of affirmance or confirmation either by the Court itself or by an Appellate Court. An order which is void or a transaction which is void is ineffective and it does not get life by bare rectification. In this view of the matter, in my opinion, the sale of Sy. An order which is void or a transaction which is void is ineffective and it does not get life by bare rectification. In this view of the matter, in my opinion, the sale of Sy. No. 35 in question described in detail in the objections and the order of sale and confirmation suffers from jurisdictional error and even if an objection filed by the judgment-debtor, has been rejected or the sale had been confirmed, that confirmation will not make the sale which is null and void to be valid. When I so observe, I find support from the judgment of the Lordship of the Supreme Court in the case of Baradakanta Mishra v. Justice Gatikrushna Misra, C. J. , High Court of Orissa, reported in AIR 1974 SC 2255 , wherein in paragraph 25, their Lordships observed that:"if the order of initial authority is void by the order of the Appellate Authority or confirming authority cannot be made valid. The order of the Government used the word 'confirm' the appeal being filed to the Governor, the appeals were dismissed. The confirmation by Governor, have no legal effect, because that which is valid can be confirmed and not that which is void". This observation was made in the contest of the two orders of reduction in rank and of dismissal of a District Judge passed by the High Court dismissing him. Their Lordships opined that under power of control vested under Article 235, High Court could hold disciplinary proceedings and could recommend the imposition of punishment of reduction in rank. And that power of reduction in rank, was one of the major punishments such as reversion in rank could only be passed by the appointing authority viz. , the Governor. Therefore, it found that order of dismissal dated 3-12-1973 as well as 8-12-1972 were null and void as High Court had no jurisdiction and therefore it held that said orders, though were confirmed by the Governor, the order of confirmation could not be valid. " This very principle applies to the present case. , the Governor. Therefore, it found that order of dismissal dated 3-12-1973 as well as 8-12-1972 were null and void as High Court had no jurisdiction and therefore it held that said orders, though were confirmed by the Governor, the order of confirmation could not be valid. " This very principle applies to the present case. ( 6 ) THAT the revision petitioners had claimed their rights and title in property put to auction sale by claiming the property to be ancestral one, and the Execution Court not having decided the said question, as well as sale having been held without following the mandate of Rule 64 of Order 21 of the Code has to be and is being illegal, null and void, being held in excess of jurisdiction. The civil revision as such has to be allowed as the order impugned and sale in question suffer from jurisdictional error coming within the framework of Sec. 115 (1) 'a', 'b', 'c' and have got the tendency of causing substantial injury and injustice to the revision petitioners in view of the above circumstances. ( 7 ) HAVING thus considered I allow the revision petition and do set aide the order of impugned and the sale impugned. ( 8 ) THE sale having been declared to be null and void in view of violation of Order 21, Rule 64, CPC. , has to be and is herewith set aside. The execution Court is directed first to restore the property to possession of the judgment-debtor and if the purchaser had deposited the money to be sale consideration, it should be refunded to the auction-purchaser. Thereafter restoring the possession of property to judgment-debtors and the returning of the money to the purchser as directed above the Execution Court should proceed with the Execution Case in accordance with law keeping in view the provisions of Order 21, Rule 64 following the mandate thereof. The revision is thus allowed as above with cost. ( 9 ) LATER the above direction be issued to the Execution Court. It will be open no doubt to the auction-purchaser to take part afresh in auction proceedings if and when they are held in accordance with law. Subject to the above, the revision is allowed with costs. --- *** --- .