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2003 DIGILAW 1009 (ALL)

RAM NATH v. CIVIL JUDGE MUZAFFARNAGAR

2003-04-30

D.P.SINGH

body2003
D. P. SINGH, J. Heard Sri Z. K. Hasan, learned Counsel for the petitioner and Sri Vishal Khandelwal for the contesting respondent. 2. The writ petition is directed against a revisional order dated 29-9-1982 by which an objection under Section 47, CPC read with Order XXI, Rule 90 filed by the petitioner has been rejected and so also the order of the trial Court, allowing the said objection, has been set aside. 3. The case as set out by the petitioner is that he purchased plot No. 959 vide registered sale-deed dated 20-2-1971 from one Shree Niwas son of Kadam. On the strength of the aforesaid sale-deed, his name was mutated over the land in dispute. Opposite Party No. 3 Hari Ram obtained a money decree against the transferrer of the petitioner and put the same into execution. Plot Nos. 476, 896 and 959 were attached during execution. It is also stated that in the auction of the aforesaid three plots the petitioner brought to the notice of the Court Amin that since plot No. 959 had already been sold to him vide registered sale-deed dated 20-2-1971, the said plot could not be sold in these proceedings. With respect to the other two plots, the petitioner is said to have made a bid which was not recorded in the bid sheet. It is also stated that Kali Ram, opposite party No. 2 had made his bid for all the three plots and whose bid was accepted and sold vide sale-deed dated 13-1-1981. The petitioner filed an objection on 30-1- 1981 before the execution Court under Section 47, CPC and Order XXII, Rule 90, CPC. The objection was that the entire proceeding were irregular and in fact, his bid for plot Nos. 476 and 896 were not considered or recorded in the bid sheet and the bid of Kali Ram was illegally accepted. The prayer made in the said objection was that the sale-deed may be set aside and attachment of plot No. 959 may be lifted and the bid of the petitioner for the plot Nos. 476 and 896 may be accepted. The contesting respondent, however, submitted that the objection of the petitioner under Section 47 and Order XXII, Rule 90, CPC was not maintainable. It was also brought on record that Hari Ram, the decree-holder, was none other than the father of the petitioner. 476 and 896 may be accepted. The contesting respondent, however, submitted that the objection of the petitioner under Section 47 and Order XXII, Rule 90, CPC was not maintainable. It was also brought on record that Hari Ram, the decree-holder, was none other than the father of the petitioner. It was also stated that no irregularity whatsoever was committed by the Court Amin. The executing Court vide order dated 18-11-1981 allowed the objection of the petitioner against which the contesting respondent preferred an appeal which has been allowed by the impugned order. The appellate Court held that the petitioner was not an interested person. Since he claims paramount title; objection under Section 47 or Order XXII, Rule 90 was not maintainable. Thus, this petition. 4. The learned Counsel for the petitioner has raised three primary contentions in support of the objection. Firstly, the objection of the petitioner Under Order XXI, Rule 90 and Section 47, CPC was maintainable. Secondly, since there was material irregularity in conducting the sale, thus, the auction itself was bad. The last contention of the Counsel for the petitioner is that the finding regarding to said auction sale recorded by the trial Court has not been set aside by the appellate Court. 5. In support of the first contention, the learned Counsel for the petitioner has submitted that as he was the transferee of the judgment debtor, therefore, he was its representative and an interested person. Further, it has been urged that since the suit property had already been sold prior to the passing of the decree, the auction sale so far as plot No. 959 is concerned, was void. It has also been urged that the application under Order XXI, Rule 90 is maintainable in view of the fact that his interests in the said property were affected by the sale. In any event, it is contended that the petitioner was claiming a paramount title whose interests are affected by the sale. Thus, the appellate Court committed manifest error by holding that the application of the petitioner was not maintainable. In any event, it is contended that the petitioner was claiming a paramount title whose interests are affected by the sale. Thus, the appellate Court committed manifest error by holding that the application of the petitioner was not maintainable. In support of his contention the learned Counsel for the petitioner has relied upon a decision of the Madras High Court rendered in the case of Saraswathi Ammal v. M. Reddiar, AIR 1975 Madras 147, wherein it has been held that if a persons paramount title is affected by the sale, application under Order XXI, Rule 90, CPC would be maintainable. However, Sri Khandelwal has urged that question with regard to saleability of the suit property could not be examined under Rule 90 of Order XXI. Relying upon sub-section (3) of Rule 90, the argument is that since recourse to Order XXI, Rule 58 has not been taken by the petitioner, the application under Order XXI, Rule 90 was not maintainable. He has urged that objection to the attachment could have been raised under Order XXI, Rule 58 as the decree-holder and the petitioner were both father and son. Further it has been urged on behalf of the contesting respondent that Section 47, CPC does not apply to the facts of the present case since the petitioner was neither representative of the parties nor was a party to the decree and his objection only related to saleability of the property. 6. To appreciate the argument of the learned Counsel for the parties, it would be necessary to quote the relevant part of Order XXI, Rule 90, as applicable to State of U. P. : "90. Application to set aside sale on ground of irregularity or fraud.- (1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a reliable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. (3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. Explanation - Provided that no application to set aside a sale shall be entertained.- (a) upon any ground which could have been taken by the applicant on or before the date on which the sale proclamation was drawn up; and (b) unless the applicant deposits such amount not exceeding twelve and half percent of the sum realized by the sale or furnishes such security the Court may in its discretion fix except when the Court for reasons to be recorded dispenses with the requirements of this clause. " 7. A perusal of Order XXI, Rule 90 shows that whenever an immovable property is sold in execution of a decree, four set of persons can apply to set aside such sale on the ground of material irregularity or fraud either in publishing or conducting it. These four persons are, decree-holder, purchaser, a person entitled to a share in such sale proceeds and a person whose interests are affected by the sale. But it will also have to be proved that due to such irregularity or fraud he has sustained substantial injury. However, even though he may be covered by all the conditionalities, even then the application would not be entertained if the ground taken could have been taken on or before such proclamation was drawn. Further vide the U. P. Amendment the objector has to deposit up the twelve and half percent of the sale money or furnish such security as the Court may fix, unless, for reasons to be recorded, the Court dispenses with the requirement. 8. It would be evident from the narration of facts that the petitioner may fall in the last category of such person i. e. whose interests are affected by the sale. 8. It would be evident from the narration of facts that the petitioner may fall in the last category of such person i. e. whose interests are affected by the sale. The case of the petitioner is that since the sale in his favour by the judgment debtor was much prior to the decree, the disputed land could not be sold as the title had already passed much prior to the attachment. Yet, three crucial questions remained to be satisfied before the application of the petitioner could be entertained. Firstly, whether "material irregularity or fraud" caused any substantial injury to him, secondly, whether he could have taken the ground on or before the proclamation of sale was drawn and thirdly, whether the petitioner had complied with the requirement of the proviso added by the U. P. Amendment. There is nothing on record to suggest that the petitioner had complied with the requirement of the U. P. Amendment though, in the reply filed by the contesting respondent specific point was raised and the same was not even discussed by the appellate Court. The second question is more crucial than the others. As already noted-above the argument of Sri Khandelwal is that the petitioner could be raised his claim or objection under Order XXI, Rule 58. Therefore, in view sub-clause (3) of Rule 90, he was not entitled to maintain his objection under Order XXI, Rule 90. For appreciating the argument of Sri Khandelwal, it would be necessary to quote relevant portion of Order XXI, Rule 58: "58. Adjudication of claims to, or objections to attachment of property.- (1) Where any claim is preferred to, or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained : Provided that no such claim or objection shall entertained - (a) where before the claim is preferred or objection is made, the property attached has already been sold; or (b) where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) All questions (including question relating to right, title or interest in the property attached) against between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. (3) Upon the determination of the questions referred to in sub- rule (2), the Court shall, in accordance with such determination: - (a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or (b) disallow the claim or objection; or (c) continue the attachment subject to any mortgage, charge of other interest in favour of any person; or (d) pass such order as in the circumstances of the case it deems fit. (4) Where any claim or objection has been adjudicated upon under this rule the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. (5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive. " 9. . As seen above, Order XXI, Rule 58 provides that prior to the sale of the attached property, if a claim or objection is made that it cannot be so attached and the Court finds that the objection or claim is bona fide, all questions relating to the title of the said property has to be determined under the said provision and not by a separate suit. But if the Court refuses to entertain such objection or claim, the decision of such refusal etc. shall be subject to the decision of a suit instituted to establish such title. The primary claim or objection of the petitioner is that since the title of the property had passed on to him prior to the decree, it could not be sold in satisfaction of the decree against his transferrer. That is to say that he claims paramount title. The primary claim or objection of the petitioner is that since the title of the property had passed on to him prior to the decree, it could not be sold in satisfaction of the decree against his transferrer. That is to say that he claims paramount title. Thus, the petitioner could have maintained his objection or claim under Rule 58. A perusal of his application does not show that he was oblivious to the decree or attachment, rightly so because the decree-holder was none other than his father and the petitioner himself had taken part in the auction sale, therefore, it cannot be denied that he had knowledge of attachment prior to the date fixed for sale of the property. In my view, the petitioner having failed to lodge this claim or objection under Order XXI, Rule 58, dis-entitles him to file any objection under Rule 90. As already noted above, learned Counsel for the petitioner has relied upon the case of Saraswathi Ammal (supra) which does not apply to the facts of the present case. In Saraswathi case an objection under Order XXI, Rule 58 was filed which was dismissed. It was in those circumstances, it was held that objection under Order XXI, Rule 90 was maintainable. On the other hand, this Court in the case of Nanhey Khan v. Lala Bhagwan Dass, 1981 AWC 308 , has held that where an objection could have been filed under any of the provisions and were not filed, would dis-entitle the applicant to seek recourse under Order XXI, Rule 90. Further, this Court in the case of Smt. Mahmooda v. District Judge, Bahraich, ( 1998 (4) AWC 362 (Suppl.), has held that question of saleability of any property could not be looked into under Order XXI, Rule 90. Thus, in my view, first contention of the learned Counsel for the petitioner has no force and is bound to be rejected. 10. In support of the second contention with regard to material irregularity in conducting the sale, the petitioner has contended that his bid was not recorded in the bid sheet, therefore, auction so held was illegal. The trial Court in its order has given a finding without any deliberation thereupon that the auction sale suffered from material irregularity. 10. In support of the second contention with regard to material irregularity in conducting the sale, the petitioner has contended that his bid was not recorded in the bid sheet, therefore, auction so held was illegal. The trial Court in its order has given a finding without any deliberation thereupon that the auction sale suffered from material irregularity. A perusal of the objection filed by the petitioner shows that his main objection was only with respect to auction of plot No. 959 and specific prayer in the application was in regard to the said plot. Though, a sweeping statement with regard to the entire auction was made but it is not supported by any cogent material on record. In my view, the appellate Court rightly ignored such findings which were not supported by any evidence. In any event, since this composite application under Order XXI, Rule 90 and under Section 47, CPC was not maintainable, it is needless to go any further in this matter. 11. The learned Counsel for the respondent has also brought to my notice that the petitioner has already filed suit No. 327 of 1982 claiming the same relief and which suit was pending. The petitioner, it appears has not mentioned this fact in his writ petition and, thus, it cannot be said that he has approached this Court with clean hands. However, in view of the fact that the writ petition has been heard on merits, it would not be wise to dismiss the writ petition on this short ground. In view of the discussions hereinabove, the writ petition fails and is dismissed. No order as to costs. Petition dismissed. .