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2006 DIGILAW 1184 (PAT)

Narendra Prasad Sinha v. Nand Kishore Singh

2006-12-05

NAVANITI PRASAD SINGH

body2006
Judgment NAVANITI PRASAD SINGH, J. 1. The present revision application is directed against the order of the learned Subordinate Judge Barh (Patna) passed in Execution Case no. 1 of 1982 being order dated 2.8.2003 whereby and whereunder the auction sale dated 3.8.1994 held by the court in execution of the decree was set aside and the execution case was disposed of on full satisfaction. 2. Both the parties have appeared and have been heard at length in course of hearing parties desired that lower court records of the execution proceeding be called for, for the purposes of verification whether any application dated 27.9.84 was filed for deposit of money as contemplated under Order XXI, Rule 89 CPC.The records have been received and inspected. An application to that effect of the said date was found on the record with due endorsement of the court that the next date appears to be 15.11.1984 but the petition should be put up on 1.11.84 to avoid limitation. The significance and importance of this application will be discussed later at an appropriate stage. 3. It appears that after a long litigation between the decree holder and the judgment holder, a compromise decree was passed by this Court on 12.8.81 in F.A. No. 114/67 whereby the defendants-judgment debtor was made liable to pay a sum of Rs. 2000/- to the plaintiff-decree holder by 30. 10.81, failing which the judgment debtor was to pay the said amount along with interest at the rate of 18% besides cost as judgment debtor failed to deposit the decretal amount, the decree holder filed the present Execution No. 1/82 for recovery of decretal amount of Rs. 2000/- along with accrued interest in the court of learned Sub Judge I, Barh (Patna). 4. It appears, that a piece of land admeasuring 2 acres, 12 decimals situated at Maranchi, District Patna were put in auction sale for realisation of decretal amount. The auction sale was held on 3.9.84 and 5.11.84 was the date fixed for confirmation of auction sale. 5. One Most. Janki Devi, the mother of judgment debtor no. 2 and wife of late Deoki Singh though not party to the suit or the execution proceeding appeared in execution proceeding. She stated that the land, which had been auction sold, was purchased in court auction dated 21.4.43 by her late husband Deoki Singh who had died leaving behind his widow Most. Janki Devi, the mother of judgment debtor no. 2 and wife of late Deoki Singh though not party to the suit or the execution proceeding appeared in execution proceeding. She stated that the land, which had been auction sold, was purchased in court auction dated 21.4.43 by her late husband Deoki Singh who had died leaving behind his widow Most. Janki Devi, the judgment debtor and his sister Kunti Devi. She had, therefore, interest not only in the immovable property sold but was also interested as it was a family property. It may be noted here that it is not in dispute that auction sale was held on 3.9.84 and from 4.9.84 to 22.9.84 Non Gazetted Employees of the State including Civil Courts were on absolute strike and thereafter from 23.9.84 to 31.10.84 the Civil Courts were closed for Puja vacation. On 30.10.84 Prime Minister late Indira Gandhi was assassinated and the court remains non functional from 1.11.84 to 4.11.84. 6. It appears that the auction sale has taken place on 3.9.84 and immediately from the next date the strike of non gazetted employees have there. The entire court works were paralised and as such the judgment debtor was not even examined in a petition to the records to find out the money that was liable to be paid or get proper calculation made and chalan passed for deposit of money by the court. By abandoned caution an application was moved before the judge on 27.9.84 and the judge on the said application of the judgment debtor that the date fixed is said to be 5.11.84 so put up on 1.11.84, so that point out of limitation should not arise. In the said application Most. Janki Devi clearly stated that she had come to court with sufficient money and was ready to deposit but in view of the strike even records of the case were not available and had prayed that the records may be shown to the Advocate so that deposit may be made immediately in terms of Order XXI, Rule 89 CPC. 7. On 5.11.84 (Monday) which was virtually first working day after the auction sale, another application was filed in the court on behalf of Janki Devi seeking permission to inspect the records and for direction that the amount to be paid be disclosed and necessary chalan passed. 7. On 5.11.84 (Monday) which was virtually first working day after the auction sale, another application was filed in the court on behalf of Janki Devi seeking permission to inspect the records and for direction that the amount to be paid be disclosed and necessary chalan passed. The court after hearing both the parties permitted fifteen days time to pay the amount. It may be noted here that none of the parties contested this order. 8. As against fifteen days time allowed by order dated 5.11.84, the entire money was deposited on 12.11.84 itself but subsequently it was discovered that due to clerical error 5% amount was not ordered to be deposited, which was corrected by order dated 28.1.2005 and time upto 9.2.85 was granted to deposit 5% amount by the court. Again there was no protest against the said order by any party. The said amount of 5% was also deposited on 8.2.85. It may be noted that first chalan for deposit of money was for Rs. 3170.50 and the 5% was Rs. 115.02p and it is for sum total of this amount with valuable property admeasuring over two acres was sold by court auction. 9. The Court sale was not confirmed and ultimately after the death of Most. Janki Devi, application was filed by her daughter Most. Kunti Devi for setting aside the auction sale and dismissed the execution proceeding on full satisfaction of the decree, which was ultimately allowed by the impugned order. 10. On behalf of the petitioner the decree holder, it is submitted that the application by Most. Janki Devi cannot be treated as an application by person claiming interest in the property in terms of Order XXI, Rule 89(i) CPC. That being so, the application itself being unentertainable, the sale had to be confirmed and the sale could not be set aside. To this short correct answer on behalf of the judgment debtor was that the property sold was purchased by the husband of Most. Janki Devi in court auction. He was dead and as such she apart from her son, who was undispoutedly judgment debot, both Had interest in the property sold. Therefore, this ground of challenge of the impugned order is misconceived. 11. Janki Devi in court auction. He was dead and as such she apart from her son, who was undispoutedly judgment debot, both Had interest in the property sold. Therefore, this ground of challenge of the impugned order is misconceived. 11. It was then submitted on behalf of the petitioner that in terms of Article 127 of the Limitation Act, 1963, the deposit had to be made within sixty days from the date of sale, which limitation expired on 1.11.84 and no effect having been made to deposit the money before the date. The sale had to be confirmed. To this the answer is that immediately on the next date to the date of sale there was a strike of non gazetted employees even in the civil courts and no work was possible. Inspite of that the learned Judge was moved by an application dated 27.9.84, which was well within the said sixty days to enable the money to be deposited in entirity pointing out the difficulty in knowing the amount and getting the order for deposit. The learned judge has endorsed that application as well noticing the problem and kept it on record. Thereafter as pointed out the court was non functional for one reason or the other continuously upto 4.11.84. That being the position, in my view, law does not expect a person to do the impossible. Records not being available, the court not being available, no order could be obtained for deposit the money. No chalan could be passed and it is in those circumstances immediately on the first re-opening day another petition was filed for a direction to calculate the amount and pass necessary chalan for deposit of the amount. The court, after hearing both the parties, granted time and within the time, the entire amount, as ordered was deposited but then itself realised mistake in calculation, which was corrected by order dated 28.1.85 and the additional amount was also deposited within the time given by the court. Therefore, in my view, there was no default in depositing the entire money as required by law. 12. The party acted pursuant to direction of the court and no party challenged these orders at any point of time. In my view, it is well settled principle that no party can be made to suffer for a mistake of court or act of court. 12. The party acted pursuant to direction of the court and no party challenged these orders at any point of time. In my view, it is well settled principle that no party can be made to suffer for a mistake of court or act of court. Here, the party could not calculate the amount and deposit. This had to be done by court staff, who had to pass the chalan before money could be deposited. For this calculation and other official were associated with the court granted time for depositing the amount accordingly. The clerical mistake in calculation discovered by the court and further time granted, again the judgment debtor cannot be blamed for the same. In my view, in the facts and circumstances of the case, the maxim of equity, namely, actus curiae heminem gravabit will apply, an act of court shall prejudice no man as also lex non cogit and impossibilia that law does not compel a man to do what he cannot possibly perform (Referred to the case of Sk. Salim Haji Abdul Khayumsab Vs. Kumar, 2006(1) SCC 46 , paras 19 and 20). 13. I may also refer the Full Bench judgment of five learned judges of this court in the case of Brij Behari Lal Vs. Srinivas Ram Kumar & Ors, since reported in AIR 1939, Patna 248 where dealing with provision of Order XXI, Rule 90 CPC it was inter alia held that the acceptance of deposit by the court and the subsequent produced thereof clearly show that the application was properly admitted on the date of deposit. 14. I may also mention that none of the parties ever challenged the order of the court granting time for deposit after ordering its calculation etc. and admittedly deposits were made well within the time fixed by the court. In fairness to the counsel for the petitioner I must note that he has relied on decisions to the effect that the court cannot extend the time for payment. and admittedly deposits were made well within the time fixed by the court. In fairness to the counsel for the petitioner I must note that he has relied on decisions to the effect that the court cannot extend the time for payment. To this my answer is that at no point extention for time was prayed for nor time was extended by the court but as court had to pass an order for deposit and give the calculation so that deposit could be made, the court fixed a time within which it had to be done and this was done on the first day available to the court after auction sale. 15. I, therefore, find no merit in the application as put forward by the petitioner for impugning the order in question. As no other point was urged, this revision application is dismissed.