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2002 DIGILAW 375 (PNJ)

Darshan Singh v. Punjab & Sindh Bank

2002-04-04

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This is a revision petition directed against the order dated 12.3.2001 passed by the Additional District Judge, Muktsar upholding the order dated 9.1.1997 delivered by the Additional Civil Judge (Senior Division), Malout. The Additional Civil Judge vide his order dated 9.1.1997 has dismissed the objection petition of the judgment debtor petitioner (for brevity, JD- petitioner) filed under Order 21 Rule 90 of the Code of Civil Procedure, 1908 (for brevity, the Code). 2. Brief facts of the case are that a civil suit No. 84 of 19.10.1994/13.9.1993 for recovery of Rs. 4,58,853.32 plus interest was filed which was decreed on 6.6.1995. On 6.6.1995, the suit was decreed for recovery of Rs. 4,12,455/- with cost and interest at the rate of Rs. 12.5% per annum. The decree was against the principal judgment debtor and the guarantor judgment debtor-petitioner. The decree holder-respondent filed an application for execution of decree against the JD petitioner and, the executing Court on 14.11.1995 has auctioned the agricultural land measuring 27 kanals, 19 marlas owned by Nand Singh, the, predecessor-in-interest of the present judgment debtor-petitioner for an amount of Rs. 4,70,000/-. Against the auction held in execution of the decree, the judgment debtor-petitioner filed objection under Order 21 rule 90 claiming that the provisions of Order 21 rule 67 of the Code were not complied with and no munadi was conducted on the spot before the alleged auction. It was further alleged that no auction was held by Tehsildar, Malout on 14.11.1995 as he did not visit the village Mahni Khera on that day because he remained busy with the New Deputy Commissioner of the district. It is claimed that the report has been prepared by the Tehsildar in his office in connivance with the decree holder-respondents on a subsequent date which was ante-dated. 3. The objection petition was opposed by the decree holder-respondents as well as by Sajjan Singh auction purchaser-respondent No. 2. The allegation of the JD-petitioner that no proclamation was conducted nor any auction was held on the spot has been controverted. The executing Court framed an issue, allowed the parties to lead evidence and thereafter hearing the arguments dismissed the objections filed under Order 21 rule 90 of the Code. The order passed by the Additional Civil Judge was taken in appeal before the Additional District Judge, Muktsar. The executing Court framed an issue, allowed the parties to lead evidence and thereafter hearing the arguments dismissed the objections filed under Order 21 rule 90 of the Code. The order passed by the Additional Civil Judge was taken in appeal before the Additional District Judge, Muktsar. The appeal was also dismissed by the impugned order dated 12.3.2001 affirming the view taken by the executing Court. 4. The first ground for dismissing the appeal filed by the judgment debtor- petitioner and affirming the view taken by the executing Court discernible from the order of the Additional District Judge is that the sale was actually conducted on 14.11.1995 and the objection petition was filed on 23.11.1995 and, therefore, the objection petition which has been filed after holding of the auction challenging the proclamation of sale under Order 21 rule 90(3) of the Code can only be raised before the actual auction not thereafter. The other ground that there was material irregularity in the publication of the proclamation which was objectionable under Order 21 rule 69 of the Code was also rejected on the ground that the Honble Supreme Court in Radhey Shyam v. Shyam Behari Singh, A.I.R. 1971 S.C. 2337 has observed that mere proof of material irregularity under Order 21 rule 69 of the Code, inadequacy of price realising from such a sale or injury is not sufficient to set aside the sale. In order to succeed for sustaining of such an objection it has to be proved that there was not only inadequacy of the price but the inadequacy was caused by reason of material irregularity or fraud establishing the connection between the inadequacy of the price and the material irregularity. The Additional District Judge highlighting the facts of the present case observed as under : "In the present case, from the perusal of interim orders dated 31.9.1995, as well as 18.10.1995, it is abundantly clear that notice of proclamation of sale under Order 21 rule 66 CPC had actually been ordered to be issued by the executing Court by displaying the same at the spot, as well as effecting of munadi. The perusal of the proclamation at pages No. 85 and 87 of the lower court file abundantly and clearly indicates that a copy of the notices had been displayed by Harmohinder Singh, Process Server at Court house on 28.9.1995 in accordance with the order of the Court and proclamation through munadi was also effected on 9.11.95 by Daljit Singh son of Babu Ram of Malout in the presence of Surjit Singh, Ex-Sarpanch of village Mahnikhera as well as Daljit Singh son of Babu Singh and report was made in this regard by Ashok Kumar process server on 9.11.1995. No effort was made by the appellant to examine the above said process servers or Surjit Singh and Daljit Singh in order to elicit the truth from them. In such circumstances, the oral testimony of the appellant or Mithu Singh and Naib Singh PWs is rendered insignificant. On the contrary, they stand belied from their own depositions as according to Darshan Singh appellant he was having knowledge that the sale is to take place on 14.11.95 and he alongwith 10/12 persons remained sitting in the Gurdwara of the village for awaiting the Tehsildar. Baldev Singh son of Nand Singh according to him was sitting in the land in question. In his cross- examination he stated that he came to know about sale three days earlier and had told about it to Rachhpal Singh, Hakam Singh, Jagnandan Singh, Naib Singh Panch and Mithu Singh Panch. Similar, is the testimony of Mithu Singh and Naib Singh. Mithu Singh and Naib Singh even stated that Rachhpal Singh had Rs. 1 lac with him, while Jaganandan Singh and Kewal Singh had Rs. 50,000/- each and Naib Singh Rs. 1.50 lacs. Naib Singh even admitted that Chowkidar was also present there. All these circumstances clearly indicated that these witnesses had gone to the spot fully prepared for bidding at the auction, regarding which they had information well in advance. Thus, it is out of their mouth that no proclamation of sale was conducted at the spot or there was any irregularity in publication of the same. At the same time, it cannot be held that any substantial injury had been caused to the appellant (sic) of the proclamation of sale." 5. Thus, it is out of their mouth that no proclamation of sale was conducted at the spot or there was any irregularity in publication of the same. At the same time, it cannot be held that any substantial injury had been caused to the appellant (sic) of the proclamation of sale." 5. The Additional District Judge also considered the arguments advanced by the judgment debtor-petitioner and concluded that the petition has been filed only to prolong the execution proceeding and there is no intention to pay the decretal amount. In this regard, observation of the Additional District Judge is as under: "It is also to be observed that there appears to be much force in the argument advanced by the learned counsel for the decree holder as well as auction purchaser that the objection petition has been preferred by the appellant only with an intention to prolong the proceeding and actually he does not intend to pay the decretal amount. The perusal of interim order dated 16.9.96 recorded by the executing court indicates that an application had been filed by the auction purchaser to the effect that he was ready to refund the amount which was deposited by him with interest @ 18% per annum but the counsel for the appellant had sought time to consult his client. The case was then adjourned to 30.9.96. On that date the appellant appeared in person with his counsel and stated at the bar that he was not ready to accept the offer made by the auction purchaser. No reason had been assigned for declining the offer of the auction purchaser. Even on 7.1.1997 the auction purchaser had again offered to release the property if the amount deposited by him was paid to him with interest @18% per annum but the appellant had refused to accept his offer. The matter does not end here because during the pendency of this appeal also an effort was made to bring the appellant to some terms for payment of the decretal amount as the Reserve Bank of India had announced certain concessions with regard to the payment of interest on the outstanding debts and even Harinderpal Singh Field Officer of the bank had appeared in the court on 22.1.2001 in pursuance of the direction of this court. The appellant did not appear on the ground that he was sick. The appellant did not appear on the ground that he was sick. There being no chance of the amicable settlement, the efforts were dropped. In these circumstances, it clearly indicates that appellant was more interested in getting the sale set aside, instead of making the payment of the outstanding debts. In Firm Balak Ram Mehr Chand and others v. Lachhman Dass, A.I.R. 1960 Punjab 359, it was observed that where the decree holder offered to return the properties to the JD at the price at which he bought them but the offer was not accepted, it may be taken into consideration in judging whether the JD has suffered any injury by the sale. In Hirabai v. Hanumat Krishanjit, 1996(2) A.C.J. 281, the Honble Apex Court had observed that where the High Court had given an opportunity to the JD to pay the decretal amount with interest, who failed to avail of it, the observation of the High Court that the JD intended to prolong the finalisation of the sale did not require any interference." 6. It is pertinent to point out that the Additional District Judge has come to a categorical conclusion that the Tehsildar has conducted the sale on the spot and strictly in accordance with the law. The signatures of the auction purchaser and other persons present at the time of auction have been found to be properly recorded by the Additional District Judge. His finding on this issue reads as under : "So far as the report of the Tehsildar is concerned, the perusal of the same indicates that the proceedings about the auction were recorded by him on two leaves which bear the signatures of the auction purchaser, as well as Harjinder Singh, Harbans Singh, Surjan Singh, Vir Singh, Jagsir Singh other bidders at the auction and Bhupinder Singh Gill Sarpanch Mahinikera in addition to Thakar Singh and Jangir Singh Chowkidar of village Mahnikhera. All these entries bear the date as 14.11.1995 and Senior Manager of the decree holder bank had signed on behalf of the bank. Proceedings were attested by the Tehsildar on the same date. The report sent by the Tehsildar to the Court is on a separate sheet though attached with the proceedings of auction. All these entries bear the date as 14.11.1995 and Senior Manager of the decree holder bank had signed on behalf of the bank. Proceedings were attested by the Tehsildar on the same date. The report sent by the Tehsildar to the Court is on a separate sheet though attached with the proceedings of auction. The possibility is there that this report might have been prepared by the Tehsildar on 16.11.1995 as despatch No. 368 written under the report originally bore the date as 16.11.1995 which has been tampered with and the date converted into 14.11.1995. If at all, the Tehsildar was to prepare false report without conducting the auction at the spot, he could have been more vigilant and could not commit such mistake by mentioning the date under his report as 14.11.1995 knowing fully well that the amount of Rs. 1,45,000/- recovered from the Auction Purchaser had been deposited in the treasury on 15.11.1995. To my mind, it is a bona fide mistake and does not in any way lead to the interference that no sale was conducted at the spot. Harijnder Singh Sarpanch of village Dhigna who appeared as APW1 and Harbans Singh as APW3 have categorically deposed about their participation in the auction held at the spot. The mere fact that they did not have property in village Mahni Khera or belonged to a distant place/villages, is no ground to infer that they could not be present at the time of sale. Narinder Singh Reader of the Tehsildar appeared as APW4 and had deposed about the holding of the actual auction at the spot on 14.11.1995 and recovery of Rs. 1,45,000/- from auction purchaser Sajjan Singh which according to him was deposited in the treasury on 15.11.1995. No motive can be attributed to the Tehsildar who is a responsible civil servant for fabricating the entire auction proceedings. The allegation of the appellant that the Tehsildar was demanding Rs. 20,000/- from him does not find any corroboration. There is nothing on record to suggest that the appellant had ever filed any representation to the higher officers about his apprehension regarding preparation of false auction proceedings by the Tehsildar," 7. I have heard Shri B.S. Sidhu, learned counsel for the judgment debtor- petitioner and Shri K.S. Rekhi for the decree holder respondent-auction purchaser Sajjan Singh and have perused the record with their assistance. 8. I have heard Shri B.S. Sidhu, learned counsel for the judgment debtor- petitioner and Shri K.S. Rekhi for the decree holder respondent-auction purchaser Sajjan Singh and have perused the record with their assistance. 8. Shri B.S. Sidhu, learned counsel for the judgment debtor-petitioner has argued that both the Courts below have committed grave error in law by rejecting the objection filed by the judgment debtor-petitioner because the executing Court should have first resorted to auction of other items like the hypothecated bus DMC Toyota bearing registration No. PAB 3084, and mortgaged property. It has further been argued that it was incumbent upon the decree holder-respondent to proceed first to recover the amount from the principal judgment debtor and not by resorting to auction of the land of the guarantor i.e. judgment debtor-petitioner. For this proposition, he has placed reliance on a judgment of this Court in case Punjab and Sind Bank v. Bharpur Singh and another, (1986-1)87 PLR 663. He has further argued that the auction has also not been held fairly because no man from the area of village has participated in the auction and person from far flung area has come forward which would show that the auction has not been held fairly. He has challenged the auction on the ground of inadequacy of price. 9. On the other hand, Shri K.S. Rekhi, learned counsel for the auction purchaser has argued that there is no irregularity in conducting the auction and both the Courts below have given a categorical finding that there was no irregularity or illegality in holding of auction. He has further argued that the sale was held on 14.11.1995 and an amount of Rs. 1,45,000/- was deposited by him at the spot. The remaining amount of Rs. 3,25,000/- stands deposited by him on 28.11.1995 i.e. within the stipulated period of 15 days. Therefore, he, cannot be made to suffer 10. Having heard learned counsel for the parties and perusing the record, I am of the considered opinion that the revision petition does not merit acceptance and is liable to be dismissed. 11. The remaining amount of Rs. 3,25,000/- stands deposited by him on 28.11.1995 i.e. within the stipulated period of 15 days. Therefore, he, cannot be made to suffer 10. Having heard learned counsel for the parties and perusing the record, I am of the considered opinion that the revision petition does not merit acceptance and is liable to be dismissed. 11. The first argument raised by the learned counsel for the judgment debtor- petitioner that the property belonging to principal judgment debtor should first be restored to before resorting to recover from the guarantor i.e. judgment debtor-petitioner cannot be accepted because the Honble Supreme Court in State Bank of India v. Indexport Registered and others, 1992(3) S.C.C. 159 has taken the view that if the decree does not put any limitation on the right of the decree holder to execute it against any of the judgment- debtors then the executing Court cannot impose its own limits. Therefore, to argue that the amount must first be recovered from the principal debtor cannot be accepted because nothing has been shown from the decree that the amounts could not be recovered from the guarantor, judgment debtor-petitioner. The decree has made the principal judgment debtor as well as the guarantor liable to pay the amounts jointly and severally. In this regard, the observations of their Lordships in the State Bank of Indias case (supra) reads under : "The decree for money is a simple decree against the judgment- debtors including the guarantor and in no way subject to the execution of the mortgage decree against judgment debtor 2. If on principle a guarantor could be sued without even suing the principal debtor there is no reason, even if the decretal amount is covered by the mortgaged decree, to force the decree- holder to proceed against the mortgaged property first and then to proceed against the guarantor. It appears the above quoted observations in Manku Narayana case are not based on any established principle of law and/or reasons, and in fact, are contrary to law. It, of course, depends on the facts of each case how the composite decree is drawn up. It appears the above quoted observations in Manku Narayana case are not based on any established principle of law and/or reasons, and in fact, are contrary to law. It, of course, depends on the facts of each case how the composite decree is drawn up. But if the composite decree is a decree which is both a personal decree as well as a mortgage decree, without any limitation on its execution, the decree holder, in principle, cannot be forced to first exhaust the remedy by way of execution of the mortgage decree alone and told that only if the amount recovered is insufficient, he can be permitted to take recourse to the execution of the personal decree. For a simple mortgage decree as prescribed in From No. 5 of Appendix-D of the Code of Civil Procedure it could be so because the decree provides like that. It is only when the sum released on sale of the mortgaged property is insufficient then the judgment debtor can be proceeded with personally. But the observations of the Court in Manku Narayana case that even if the two portions of the decree are severable and merely because a portion of the decretal amount is covered by the mortgage decree, the decree holder, per force has to proceed against the mortgaged property first are not based on any principle of law. With all due respect to the learned Judges in the light of the observations made by us earlier, we are constrained to observe that Manku Narayana case was not correctly decided. 12. In so far as the other argument of the learned counsel pointing out irregularity in conducting auction would not require any serious consideration in view of the fact that both the Courts below have taken the view after recording the detailed evidence that there is no material irregularity in holding auction. The judgment debtor-petitioner has failed to establish any nexus for the allegation that the price is very low with any of the material irregularity as is laid down by the Supreme Court in Radhey Shyams case (supra). This view has been further reiterated in a number of judgments which are as under : Rajender Singh v. Ramdhar Singh, 2001(6) S.C.C. 213. Ram Maurya v. Kailash Nath, 1999(9) S.C.C. 276. Divya Manufacturing Co. (P) v. Union Bank of India, 2000(6) SCC 69. 13. This view has been further reiterated in a number of judgments which are as under : Rajender Singh v. Ramdhar Singh, 2001(6) S.C.C. 213. Ram Maurya v. Kailash Nath, 1999(9) S.C.C. 276. Divya Manufacturing Co. (P) v. Union Bank of India, 2000(6) SCC 69. 13. Therefore, the argument of the learned counsel is liable to be rejected. Moreover, the Supreme Court in Panna Devi v. Ram Prasad Pandey (dead) by LRs and others, 2000(10) S.C.C. 159 has observed that once both the Courts below have taken a particular view and have concluded on facts then unless some material irregularity showing flagrant violation of the Code of Civil Procedure is pointed out, the High Court would not interfere. In this regard, the observations of their Lordships in Panna Devis case (supra) read as under : "From the facts enumerated hereinabove, the High Court in our opinion, erred in exercising its jurisdiction under Article 226 and in upsetting the judgment of the lower appellate Court. Firstly, the High Court ignored the fact that there had been non-compliance with the provisions of Order 21 Rule 90 sub-rule (2) which required the applicant to deposit twelve- and-a-half per cent of the bid money before the application for setting aside the sale could be entertained. The executing court in its order dated 2.7.1977 has clearly stated that this amount was not deposited. Learned counsel for the respondent is unable to satisfy us from any document on record that the provisions of Order 21 Rule 90 sub-rule (2) had been complied with and the money deposited. On this ground alone the objections merited dismissal. Furthermore, when the trial court as well as the lower appellate court having come to the conclusion that the sale bid was accepted by the Amin on 18.4.1972, there was no justification for the High Court to have interfered with the concurrent finding. The report of the Amin clearly shows that the bid was closed with the appellant having given the higher offer of 8200 rupees. The use of the words "ba umeed manzoori" in this context can mean nothing more than the fact that the sale was subject to confirmation by the Court which would be relatable to Order 21 Rule 92. The report of the Amin clearly shows that the bid was closed with the appellant having given the higher offer of 8200 rupees. The use of the words "ba umeed manzoori" in this context can mean nothing more than the fact that the sale was subject to confirmation by the Court which would be relatable to Order 21 Rule 92. The High Court in our opinion was, therefore, in error in allowing the writ petition." The principle enunciated in various judgments mentioned above, when applied to the facts of the case it is clear that no room is left for interference by this Court in its revisional jurisdiction under Section 115 of the Code. Therefore, the revision petition is liable to be dismissed. 14. For the reasons recorded above, the revision petition fails and the same is dismissed. After this order was dictated and before it could be signed, the learned counsel for the judgment debtor-petitioner has appeared and argued that the judgment debtor-petitioner is prepared to pay the decretal amount. However, no firm commitment has been shown either by producing bank draft or any amount in cash. If the judgment debtor-petitioner produces a bank draft for the whole of the decretal amount before the Registrar of this Court on or before 29.4.2002 and the Registrar is satisfied then the case may be listed for hearing again on 30.4.2002. If the judgment debtor-petitioner remains unable to do so then the order of dismissal as recorded above shall stand and the revision petition would be deemed to be dismissed. Order accordingly.