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2002 DIGILAW 28 (HP)

UCO BANK v. JAGDISH RAM

2002-01-25

K.C.SOOD

body2002
JUDGMENT Kuldip Chand Sood, J. (Oral) : These two petitions have been filed for setting aside the sale of immovable property of the Judgment debtor Dhani Ram, which took place on 16th April, 2001, in an open auction. Petition No. 199 of 2001 has been filed by the decree-holder Bank. The second petition 308 of 2001 has been filed by one Mohinder Kumar r/o Kothi Batala, Tehsil and distt. Bilaspur (HP). Applicant Mohinder Kumar is stranger and has no interest in the property. 2. It appears judgment debtors Jagdish Ram and Dhani Ram suffered a decree in the amount of Rs. 1, 77,534.68 on 13th May, 1986. The amount payable to the decree-holder-bank swelled to Rs.3, 79,916.28, when the execution petition was filed after adding interest. On June 23, 1997 the immovable property of Judgment debtor No.l was directed to be attached. The sale proclamation was drawn by the Registry of this Court. No body came forward to offer any bid on the date fixed for the auction of the property. On 4th March, 1998 fresh proclamation was ordered to be drawn and issued. Learned counsel for the decree holder on 4th March, 1998 stated that he will arrange for bidders. Again, warrants of sale were received back unexecuted with the report that no one came forward to bid nor any bank representative was present on the date fixed for auction. Fresh warrants were ordered to be issued on 12th June, 1998. Warrants of sale again could not be executed for want of bidders. Thereafter, steps were not taken by the decree holder for issuance of fresh warrants of sale. When the matter came up before the court learned counsel for the decree-holder represented that decree-holder-Bank may be permitted to participate in the auction as nobody is coming forward to purchase the property. The decree-holder-bank was in the circumstances, permitted to bid in the auction of the attached property. The auction was held on 22nd September, 2000 but again nobody came forward to give bid. The persons who were present stated that they are not willing to give any bid. Even the representative of the decree-holder-bank was not present. The matter came up before this court on 27.10.2000. Learned counsel for the decree-holder represented that the concerned Branch Manager could not be present on the date fixed for auction, as he was waiting for necessary authorisation from his Head Office. Even the representative of the decree-holder-bank was not present. The matter came up before this court on 27.10.2000. Learned counsel for the decree-holder represented that the concerned Branch Manager could not be present on the date fixed for auction, as he was waiting for necessary authorisation from his Head Office. At the instance of the learned counsel for the decree-holder, fresh warrants for the sale of attached property were directed to be issued. Learned counsel for the decree-holder specifically stated that "representative of the decree-holder shall be present to participate in the auction on the date fixed for such auction." The auction was held on 16th April, 2001. Smt. Shyama was the highest bidder who offered Rs.40,000/- for the attached share of judgment debtor No. 1 in the property. As many as 11 persons participated in the bid. Sh. Satish Suman, Field Assistant of the decree-holder bank, Darlaghat Branch, as representative of the decree-bolder bank was present at the time of auction. However, he did not give any bid on behalf of the decree- holder bank. 3. The decree-holder in its petition (OMP No. 199 of 2001) prays for setting aside of the sale on the grounds that: "(a) there was no proper publication or proclamation of sale on the spot with the result that better and prospective buyers could not come on the spot and the entire sale proceedings were held in hush hush manner and the auction purchaser stated to be a lady who is closely related to judgment debtor was not on the spot nor did she give any bid for the purchase of the land in question." (b) the sale was made for inadequate consideration and if the auction purchaser was ready to pay Rs. 1,00,000/- then the sale may be confirmed." 4. Applicant Mohinder Kumar prays for setting aside of the sale on the similar grounds that there was no proper publication or proclamation and no notice in the area was served upon the public for auction of the property, subject of sale, therefore, "the better buyers could not come on the spot for auction". It is further stated by the applicant that he is ready to pay Rs. 1,00,000/- for this land. 5. The auction purchaser in her reply controvert the allegations. It is stated that the decree-holder has not approached this court with clean hands. It is further stated by the applicant that he is ready to pay Rs. 1,00,000/- for this land. 5. The auction purchaser in her reply controvert the allegations. It is stated that the decree-holder has not approached this court with clean hands. The auction purchaser maintains that she has been dragged to unnecessary litigation. It is further stated that a similar complaint was also made to the Collector, Bilaspur, which was investigated and it was found that the complaint was false and baseless. She particularly states that warrants of sale of the attached property were issued four times for want of purchaser. The decree-holder Bank moved an application for permission to bid in the auction and it is only thereafter that the property was auctioned in the presence of representative of the decree-holder bank. According to the auction purchaser, proclamation of sale was property published and the sale was conducted as per the procedure and in accordance with law. The allegation that the auction purchaser is dummy of Judgment debtor No.l is denied. It is stated that though judgment debtor No.l is father- in-law of the applicant but he is missing from the village since 1991 and has no contact with any person. He was searched by the police in some criminal case but not found any where. The auction purchaser maintains that she had seen judgment debtor No. 1 twice, once at the time of her marriage and secondly when her husband died. 6. I have heard Mr. J.L. Kashyap, learned counsel for the decree-holder, Mr. A.K. Bansal, learned counsel for the decree-holder, Mr. A.K. Bansal, learned counsel for the applicant Mohinder Kumar and Ms. Devyani Sharma, learned counsel for the auction purchaser and also perused the record. 7. So far application of applicant Mohinder Kumar is concerned, it has not been signed by the applicant. On 2nd August, 2001 when this fact was borough to the notice of the court, learned counsel for the applicant Mr. A.K. Bansal, stated that he will file proper application within a week. However, no such application was filed. The fact remains that the application is unsigned by Mohinder Kumar. This apart, the application was filed by Mohinder Kumar in the Registry on 6th July, 2001 whereas the sale of the property took place on 16th April, 2001. A.K. Bansal, stated that he will file proper application within a week. However, no such application was filed. The fact remains that the application is unsigned by Mohinder Kumar. This apart, the application was filed by Mohinder Kumar in the Registry on 6th July, 2001 whereas the sale of the property took place on 16th April, 2001. The period of limitation for filing an application for setting aside sale is 60 days under Article 127 of the Schedule (1) of the Limitation Act, 1963 as amended by amendment act of 1976. The application filed by Mohinder Kumar thus is beyond the period of limitation and does not deserve consideration. 8. This apart, it is open to doubt if Mohinder Kumar who is a stranger and has no interest in the property subject matter of dispute can maintain such an application. It is true that application for setting aside of the sale can be made by any person "whose interests are affected by sale". It is equally true that expression whose interests are affected by sale are wide in scope and import. It will cover a person who is not party to the suit. Nevertheless right under Rule 90 of Order 21 can only be exercised by a person who is directly and immediately affected by the sale of immovable property of the judgment debtor. Rights or interest which are likely to be affected or may be remotely affected do not fall within the ambit of this rule. In the present case, what the applicant Mohinder Kumar states is that for want of proper publication of the sale, he could not participate in the auction though he was ready to pay "more money for the land". According to the applicant, he is willing to pay Rs. 1,00,000/- for the land sold in the auction to the auction purchaser. Obvious as it is, interest or rights of Mohinder Kumar are not affected even remotely by the sale in question. Mr. A.K. Bansal, learned counsel for the applicant Mohinder Kumar, refers to Ghulam Quadir v. Special Tribunal & Ors. 2002 (1) SCC 33, and submits that his petition cannot be rejected on the ground of his not having locus standi. In Ghulam Quadir, locus standi of the respondents to file writ petition against the orders of Tribunal was under challenge. Mr. A.K. Bansal, learned counsel for the applicant Mohinder Kumar, refers to Ghulam Quadir v. Special Tribunal & Ors. 2002 (1) SCC 33, and submits that his petition cannot be rejected on the ground of his not having locus standi. In Ghulam Quadir, locus standi of the respondents to file writ petition against the orders of Tribunal was under challenge. It was contended that respondents/tenants being not aggrieved parties had no right to challenge the order passed against them as they claimed only through custodian and did not have any independent right in themselves. It is in this context that their Lordships observed: "There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid article. The court has undergone a sea change with the development of constitutional law in our country and the constitutional courts have been adopting a liberal approach in dealing with the cases or disloding the claim of a litigant merely on hypertechnical grounds. If a person approaching the court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provision, the petition filed by such a person cannot be rejected on the ground of his not having the locus standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi." 9. I have already observed that in the present case the applicant has not been able spell out how his rights are adversely affected by the sale of this property. He at the best was prospective buyer of the auctioned property. There could be several others like him in the different parts of the State. I have already observed that in the present case the applicant has not been able spell out how his rights are adversely affected by the sale of this property. He at the best was prospective buyer of the auctioned property. There could be several others like him in the different parts of the State. However, fact remains he had no interest or right in the property nor he is adversely affected in any manner by the auction of this property. 10. So far merits of the applications are concerned, the main ground of challenge is that proclamation of sale was not properly published, what lacked in the publication of the proclamation of sale, which was drawn by the Registrar (Vigilance) of this court, is not spelled out in the application. No infirmity could be pointed out in the publication of proclamation of sale by the learned counsel for the applicants during the course of hearing. 11. Rule 67 of Order 21 of the Code of Civil Procedure provides that every proclamation for sale has to be made and published, as nearly as may be, in the manner prescribed by sub rule (2) of Rule 54 of Order 21 of the Code. Sub rule (2) of Rule 54 stipulates that the order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property, the Court-house, in the office of the Collector of the District in which the land is situate and in the office of Gram Panchayat, if any, haying jurisdiction over the village in which the land is situate. 12. It is not the case of the petitioners that the proclamation was not published by beat of drum or a copy of the order was not affixed on a conspicuous part of the property or the Court house or in the office of collector of the district or in the office of Gram Panchayat. Only omnibus allegation is made that "there was no proper publication or proclamation, no notice in the area was served upon the public for auction of the property/land". It may be seen that no notice is required to be served on the individual prospective buyers under Order 21 Rule 54 of the code of Civil Procedure. 13. Only omnibus allegation is made that "there was no proper publication or proclamation, no notice in the area was served upon the public for auction of the property/land". It may be seen that no notice is required to be served on the individual prospective buyers under Order 21 Rule 54 of the code of Civil Procedure. 13. It is now well settled that mere inadequacy of sale consideration is no ground for setting aside of the sale under Order 21 Rule 90 of the Code of Civil Procedure. See Rajinder Singh v. Ramdhar Singh & Ors. AIR 2001 SC 2220. 14. The fact that auction purchaser is widow of pre-deceased son of judgment debtor is of no consequence particularly when there is no allegation of fraud or material irregularity which may prejudice the decree-holder. In Muthulakshmi Achi v. Meenakshi Achi & Ors. 1993 Supp (4) SCC 658 an objection was taken in the High Court that the appellant was not a bonafide third-party purchaser, as she was wife of third defendant and this fact was concealed from he court at the time of acceptance of the tender This objection found favour with the High Court. It was made one of the grounds to set aside the sale in favour of the appellant. The matter was carried by the appellant to the Apex court. In this context, learned Judges observed: "In the absence of any finding of fraud or other material irregularity giving rise to prejudice, the said fact, in our opinion is irrelevant. The fact that the appellant was the wife of the third defendant did not debar her from making an offer. It cannot also be said that when her offer was being accepted in the court, the parties to the suit were not aware of her relationship with the third defendant".(emphasis supplied) 15. In the present case, it is admitted position that representative of the decree-holder bank was present with due authorisation from the decree-holder bank to participate in the auction. No objection was raised that the auction purchaser was not entitled to give the bid. In fact, report of the Collector, regarding the auction shows that Mr. Satish Suman, field Assistant and representative of the decree-holder bank were satisfied with the auction and highest bid made by auction purchaser Smt. Shyama, and as a token whereof he signed the proceedings. No objection was raised that the auction purchaser was not entitled to give the bid. In fact, report of the Collector, regarding the auction shows that Mr. Satish Suman, field Assistant and representative of the decree-holder bank were satisfied with the auction and highest bid made by auction purchaser Smt. Shyama, and as a token whereof he signed the proceedings. To the same effect are the observations of Tehsildar in his report to the Collector that Satish Suman representative of the decree-holder bank signed the proceedings in token of approval of the proceedings. 16. This court cannot be unmindful of the fact that on four occasions no person was present to give bid inspite of the efforts made by the decree-holder in terms of the statement made by the learned counsel for the decree-holder that the decree-holder bank will arrange for bidders. In any event, if the decree-holder thought that the amount of sale was inadequate, decree-holder could have participated in the auction and given higher bid for which decree holder has taken specific permission from this court. 17. No other point is urged before me. 18. There is no merit in these petitions, the same are dismissed.