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2004 DIGILAW 9 (PAT)

Munga Devi v. Indrashan Devi

2004-01-05

NAGENDRA RAI

body2004
Judgment 1. Inspite of valid service of notice, no body has appeared on behalf of the opposite party. 2. The civil revision application is barred by limitation. 3. After having heard learned counsel for the petitioner and perusal of the limitation petition, the delay in filing this civil revision application is condoned. 4. The decree holder is the petitioner against the order dated 16.3.2001 passed by the Execution Munsif, Patna in Execution Case No. 2 of 1998 refusing her prayer to recall the order effecting delivery of possession and to proceed to confirm the sale and grant sale certificate before effecting delivery of possession. 5. The plaintiff-petitioner filed a Money Suit which was decreed on 18.9.1997. Thereafter the petitioner levied Execution Case No. 2 of 1998 and in the said Execution Case, 10 dhurs land of C.S. Plot No. 400 of Mauza Rastiganj, P.S. Phulwarisharif, District-Patna belonging to the judgment debtor-opposite party was put on auction. In the auction, the decree holder participated with the permission of the court and being the highest bidder his bid was accepted on 12.10.1999. On 17.12.1999, the decretal amount was adjusted towards the purchase money. On 26.9.2000, the delivery of possession was given to the decree holder-petitioner and the Execution Case was disposed of on 22.11.2000. Thereafter it was noticed that the delivery of possession has been effected in this case without compliance of the Order XXI, Rule 92 of the Code of Civil Procedure (for short, the Code) confirming sale and issuing a sale certificate under Order XXI, Rule 94 of the Code which is necessary for vesting a title in the purchaser. The decree holder petitioner filed a petition on 7.3.2001 for recall of the order which has been rejected by the court below on the ground that the execution case has already been disposed of. 6. Learned counsel appearing for the decree holder-petitioner submitted that it is the duty of the court to confirm the sale and issue a sale certificate for which the purchaser is not required to file a petition. 6. Learned counsel appearing for the decree holder-petitioner submitted that it is the duty of the court to confirm the sale and issue a sale certificate for which the purchaser is not required to file a petition. No right and title remain with the judgment debtor after confirmation of sale and the title vests in the purchaser and without confirmation of sale, the title will not vest in the auction purchaser and in that view of the matter the Court below has committed error in ordering for delivery of possession without confirming the sale and when the matter was brought to its notice it should have rectified its mistake and should have recalled the orders for delivery of possession and after confirmation of sale and issuance of sale certificate it should have proceeded further in the matter. The Court below was not right in saying that once the execution case was disposed of it was functus officio as the court below has power to rectify the mistake either under section 47 of the Code or under section 151 of the Code. 7. Admitted fact is that the petitioner is the auction purchaser in a court sale and being the highest bidder, his offer was accepted. After acceptance of the offer, the Court should have proceeded under Order XXI, Rule 92 of the Code to confirm the sale as it is well settled that the title in the property vests in the auction purchaser after confirmation of the sale and that relates back to the date of sale as provided under section 65 of the Code. No right and title remain with the judgment debtor after confirmation of sale in favour of the highest bidder. So far issuance of sale certificate under Order XXI, Rule 94 of Code is concerned, the same is mandatory but the granting of certificate is ministerial act and not a judicial act. 8. Under the law after the highest offer is accepted in a auction sale, there is no duty cast on the purchaser to file an application either for confirmation of sale or grant of sale certificate. It is the duty of the Court to confirm the sale and issue a sale certificate. 8. Under the law after the highest offer is accepted in a auction sale, there is no duty cast on the purchaser to file an application either for confirmation of sale or grant of sale certificate. It is the duty of the Court to confirm the sale and issue a sale certificate. In case the sale is not confirmed under Order XXI, Rule 92, the sale would be void one in the sense that the same would not confer any title in the auction purchaser and in absence of that no delivery of possession could have been effected. 9. The question is as to whether after the execution case was disposed of, the Court below was having power to entertain the application to rectify the mistake. 10. Section 47 of the Code provides that all questions arising between the parties to suit which includes purchaser of property at a sale in the execution of a decree, in which the decree was passed or the representatives and which relate to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. The question raised by the decree holder-auction purchaser is as to the question as to whether the decree was satisfied according to law or not. 11. The delivery of possession was given without following the mandatory provision and non-observance of the aforesaid mandatory provision made the sale void and as such the question raised by the petitioner was with relation to discharge and satisfaction of the decree and accordingly, the court below committed a jurisdictional error. Even assuming that the execution case was disposed of and the application was not maintainable under section 47 of the Code, it was very well maintainable under 151 of the Code which preserves the inherent power of the Court to make orders necessary for the ends of justice or to prevent abuse of the process of the court. 12. Even assuming that the execution case was disposed of and the application was not maintainable under section 47 of the Code, it was very well maintainable under 151 of the Code which preserves the inherent power of the Court to make orders necessary for the ends of justice or to prevent abuse of the process of the court. 12. In the case of B.V. Patankar and others vs. C.G. Sastry, reported in AIR 1961 Supreme Court 272, the question for consideration before the Constitution Bench of the Apex Court was as to whether the application filed under sections 47, 144 and 151 of the Code for setting aside the ex parte order for delivery of possession passed in execution of the decree and for re-delivery of possession on the ground that the delivery of possession was given in ignorance of the statutory provision of Mysore House Rent and Accommodation Control Order (1948) was maintainable or not. The Apex Court held that the question whether the decree was completely satisfied and therefore the court became functus officio is a matter relating to execution, satisfaction and discharge of the decree. The Apex Court also held that in a case where the order of delivery of possession was passed without jurisdiction re-delivery can be ordered under section 47 read with section 151 of the Code. In this case it is relevant to quote paragraph 8 of the said judgment; "The inapplicability of S.47 to the proceedings out of which the appeal has arisen was also raised before us, but; that contention is equally unsubstantial because the question whether the decree was completely satisfied and therefore the court became functus officio is a matter relating to execution, satisfaction and discharge of the decree. It was held by this Court in Ramanna vs. Nallaparaju (S) AIR 1956 SC 87 at p. 91 that: "When a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by an application under S. 47, and not in a separate suit." See also J. Marret vs. Mahomed Khaleel Shirazi & Sons, AIR 1930 PC 86 where the facts were that an order was made by the Executing Court directing contrary to the terms of the decree the payment of a certain fund to the decree holder. The Madras High Court in Mahomed Sikri Sahib V. Madhava Kurup, AIR 1949 Mad 809 held that where the Executing Court was not aware of the amendment of the Rent Restriction Act by which the execution of a decree was prohibited and passed an ejectment decree against a tenant, the Executing Court could not execute the decree and any possession give under an ex parte order in execution of such a decree could be set aside under S. 151 of the Code of Civil Procedure. The prohibition is equally puissant in the present case and S. 47 read with S. 151 would be equally effective to sustain the order of redelivery made in favour of the respondent." 13 In the case of Budhia Swain and ors vs. Gopinath Deb and ors., reported in AIR 1999 Supreme Court 2089, the Apex Court held that a Court and Tribunal may recall an order when the order suffers from inherent lack of jurisdiction or has been obtained by fraud of collusion or there has been a mistake by the Court prejudicing a party or the order has been passed without proper notice to the affected party. 14. In this case, the Court below has committed a mistake in not confirming the sale and issuing a sale certificate as a result of which the decree holder is prejudiced as the delivery of possession may be challenged by the judgment debtor at a subsequent stage on the ground of its being void and as such it is a fit case for recalling the order of delivery of possession and to take steps for confirmation of sale and issuance of sale certificate before proceeding further in the matter. 15. 15. Accordingly, the impugned order is set aside and the order of delivery of possession is recalled and the Court below is directed to proceed further in accordance with the provisions of the Code and in the light of the observations made above. 16. In the result, the civil revision application is allowed.