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Madhya Pradesh High Court · body

2008 DIGILAW 1427 (MP)

Mukesh Kumar Sanghvi v. Saifuddin

2008-12-10

SHANTANU KEMKAR

body2008
JUDGMENT 1. This first appeal filed under S.96 of the Code of Civil Procedure (for short CPC) is directed against the order dated 21.4.2007 passed by the 1st Additional District Judge, Dhar in Execution Case No. 18-A/2002-04 by which the appellant's objection filed under Order XXI Rule 58 of the CPC has been rejected. 2. Brief facts necessary for disposal of this appeal are that one Ompakash s/o Hiralal filed a Civil Suit No.28-B/2002 against respondent No.8 Raghunath Oil Mills for recovery of Rs.30,000/-. In the said suit an order under Order XXXVIII Rule 5 of the CPC in nature of attachment before judgment was passed by the executing Court on 5.3.2002 attaching the properties of the Raghunath Oil Mills which are subject-matter of the present executing case. The said suit No.28-B/02 was ultimately decreed in favour of Omprakash. In the execution filed by the decree holder Omprakash a proclamation was issued in execution case No.28-B/02-06 and the attached property was sold in the auction to appellant Mukesh Kumar. 3. When the matter stood thus, in an another Civil Suit No.18-Al02 filed by the respondent No.2 Saifuddin seeking specific performance of the contract, the relief of specific performance of contract was denied to the plaintiff of the said suit Saifuddin. However, a money decree for refund of Rs.31,55,000/- was passed in his favour and against the defendants of the said suit including Raghunath Oil Mills, Badnawar. In the execution of the said money decree after obtaining the permission of the executing Court under Order XXI Rule 72 of the CPC, decree holder Saifuddin participated in the auction proceedings. Before the property could be sold in this execution proceedings No.18-A/02-04, the appellant submitted his objection under Order XXI Rule 58 of the CPC stating therein that the property which has been attached and to be auctioned in this execution case was already attached before judgment in the Civil Suit No.28-B/02 and has been auctioned in execution case No.28-B/02-06 and as such cannot be auctioned. 4. The dispute between the appellant and the first respondent is in regard to the identity of the property purchased by the appellant in the auction held in the execution case No.28-B/02-06. 4. The dispute between the appellant and the first respondent is in regard to the identity of the property purchased by the appellant in the auction held in the execution case No.28-B/02-06. The case of the appellant is that he has purchased the property description of which is land situated at survey No.2647, ward No.14, Shraddhanand Marg, Badnawar of house No.96-97 consisting of East-West 44 feet, North-South 60 feet. The boundaries of which are in East house of Kamlesh Kumar and Serakuwarbai Sanghvi, in West house of Md. Saifuddin Mulla, in North ; Shraddhanand Marg, in South Mahavir Colony (emphasis supplied). 5. According to the appellant the same property with only difference about the East-West measurement has been attached and has been put to auction in the execution case No. 18-A-02-04 by the 1st Additional District Judge, Dhar. According to him when he objected the attachment by filing an objection under Order XXI Rule 58 of the CPC the 1st Additional District Judge, Dhar has illegally rejected his objection by holding that since the sale in his favour has not yet been confirmed and the property which has been purchased by the appellant objector in execution case No.28-B/02-06 and the property which is being attached and is in the process of auction in this execution case No.18-A/02-04 are different, the objection has no merit and both the auctions can proceed. 6. The case of the appellant is that the executing Court has committed error in dismissing his objection on merit without holding inquiry by recording evidence. He stated that the executing Court ignoring the fact that the property which was being attached and put to auction was already attached and auctioned in favour of the appellant in execution case No.28B/02-06 by the Civil Judge, Class I, Badnawar. He submits that only on account of little difference in the dimensions the finding of the executing Court that the property which has been attached and put to auction in the present execution is different then the property which was auctioned in execution case No.28-B/02-06, is wholly misconceived. He, accordingly, prayed for release of the property put to auction in execution case No.18A/02-04. He, accordingly, prayed for release of the property put to auction in execution case No.18A/02-04. The appellant has also filed an IA No.11166/08 under Order 41 Rule 27 of the CPC along with copies of application filed by the first respondent under Order XXI Rule 91, 92 and 93 of the CPC before Civil Judge Class I, Badnawar, the order dated 16.4.2007 passed by the Civil Judge, Class I, Badnawar and the sale certificate dated 17.5.2007. 7. The case of the first respondent decree holder is that actually the appellant had purchased the property which was put to auction by the proclamation dated 8.9.2006 issued in execution case No.28-B/02-06 by the Civil Judge, Class I, Badnawar. In the said sale proclamation the description of the property was shown as eastern side of the house situated o.n land bearing survey No.2647 Rathod Traders, Shraddhanand Marg, Badnawar adjacent to Nala, East-West 44 feet and South-West 60 feet with boundaries in East Nala and road in West remaining portion of the same house in North public way Shraddhanand Marg in South Mahavir Colony (emphasis supplied). However, instead of the said property of which proclamation was issued the appellant got changed the description of the property and instead of the property of which proclamation was issued he got issued the sale certificate in his name of different property by playing fraud with the executing Court at Badnawar. According to him the appellant himself being the counsel in the case, he could not have participated in the auction of the attached property. He alleged that the conduct of appellant who is a practising Advocate in participating and purchasing the property in the auction in the matter in which he himself is a counsel is illegal and is impermissible in view of the prohibition contained under Order XXI Rule 73 of the CPC. He submits that the sale can be held only in terms of the proclamation issued and in the sale certificate. The description of the property could not have been changed as has been done by the executing Court at the behest of the appellant. 8. He submits that the sale can be held only in terms of the proclamation issued and in the sale certificate. The description of the property could not have been changed as has been done by the executing Court at the behest of the appellant. 8. In support of the aforesaid contentions Shri P.K. Saxena learned senior counsel appearing for the first respondent decree holder placed reliance on the judgment of Privy Council reported in Indian appeals 1913 (volume XLI) 38 Thakur Burmha and others v. Jiban Ram Manvari and others, in which their Lordships have held that if by a mistake the wrong property was attached and an order made to sell it, the only course open to the decree holders on the discovery of the mistake was to commence the proceedings over again. They could not turn an authority to sell one property into an authority to sell another and a different one. He also relied the case of Sunderbai v. Bapuna and others [AIR 1929 Nagpur 305]. in which it has been held that the pleader of a decree holder cannot bid at auction sale directly or indirectly and if he does so the sale is altogether void. Learned senior counsel for the first respondent also placed reliance on the judgment passed in case of Dagdulal Trilok and another v. Rameshwar Ram and others [AIR (31) 1944 Nagpur 305], in which it has been held that the sale certificate is not conclusive. It only affords prima facie evidence of title and it can always be shown that the sale certificate is wrong even when there is no ambiguity in it. A Court sale is nothing but an offer and an acceptance, the offer being made by the Court in the sale proclamation. The drawing up of the sale certificate is only a ministerial act and not a judicial one and so, if it does not correspond with what was offered for sale and purchased it is of no avail. The crucial documents are the schedule of property in the application in attachment, the order directing the sale and the sale proclamation. 9. The drawing up of the sale certificate is only a ministerial act and not a judicial one and so, if it does not correspond with what was offered for sale and purchased it is of no avail. The crucial documents are the schedule of property in the application in attachment, the order directing the sale and the sale proclamation. 9. Having heard learned senior counsel for the parties I find that the controversy involved in this appeal rotates to the question as to whether the property purchased by the appellant in the auction held in Execution Case No.28-B/02-06 at Badnawar is the same property which is subject matter of attachment and auction in the impugned proceedings of Execution Case No.18-A/02-04 or is a different property and as to whether the approach of the Court below in deciding the question without affording opportunity to the parties to lead evidence is proper. Since for the reasons stated hereunder I am remitting the matter to the Court below for fresh adjudication of the appellant's objection after affording opportunity to the parties to lead evidence, I feel that the grounds raised by the first respondent at the time of hearing of the appeal need not be gone into in this appeal. 10. On going through the records of the execution case No. 18-A/02-04 and 28-B/02-06, the documents filed by the parties, I find that there is a serious dispute between the parties as to the identity of the property purchased by the appellant in execution case No.28-B/02-06. The appellant is contending that he has purchased the same property in execution case No.28-B/02-06 which has been attached and put to auction in the present execution case No.18-A/02-04. However, the first respondent is disputing the said contention and is alleging manipulation in the description of the property by the appellant in the execution case No.28-B/02-06. Having regard to the serious dispute between the parties about the identity and the boundaries of the property which the appellant has purchased in the auction in execution case No.28-B/02-06 and the property which has been attached and put to auction in the present execution case No.18-A/02-04 in my considered view the appellants objection filed under Order 21 Rule 58 of the CPC was required to have been decided by the executing Court by holding an inquiry about the controversy after affording the parties to lead their respective evidence. 11. 11. In order to appreciate as to whether an inquiry is necessary requirement for adjudicating the claim or objection, it would be appropriate to quote Order XXI Rule 58 of the CPC. Order XXI Rule 58 of the CPC reads thus : "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 be 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 questions relating to right, title or interest in the property attached) arising 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 or 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. (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." 12. On close reading of provisions contained in Order XXI Rule 58 of the CPC it is clear that it gives a statutory and substantial right to a party to get his claim or objection to be adjudicated. The aforesaid provision makes it clear that when claim is preferred or any objection is made invoking provisions of rule 58 of Order XXI of the CPC the Court has power either to dismiss such an application in limine on the ground that the property attached had already been sold out or when it holds that the claim or the objection was designedly made to delay the proceedings. Sub-clause 5 of Rule 58 of Order XXI of the CPC empowers the party against whom the Court has passed an order under proviso to sub-rule (1) by refusing to entertain the claim or objection, to file a suit to establish the right which he claims to the property in dispute. However, if the claim or objection is not dismissed under clause (l)(a) or (b) of Rule 58 the questions including right, title or interest in the property attached arising between the parties to proceeding are required to be determined by the Court dealing with the claim or objection and not by a separate suit. 13. Thus a duty is cast on the Court to hold an inquiry to adjudicate the claim or objection to the attachment of the property. 13. Thus a duty is cast on the Court to hold an inquiry to adjudicate the claim or objection to the attachment of the property. The determination of the adjudication necessarily implies and cast a mandatory duty upon the executing Court to give an opportunity to the parties to adduce all necessary evidence in support of the claim or to resist such claim, and pass appropriate orders either by allowing the claim or objection and release the property from attachment either wholly or to such extent as to think fit or disallow the claim or objection or continue the attachment subject to any mortgage, charge or other interest in favour of any person or pass such order as in the circumstances of the case it deems it fit. Subclause 4 of Rule 58 provides that 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 same conditions as to appeal or otherwise as if it were a decree. 14. A learned Single Judge of this Court at Principal seat Jabalpur had an occasion to deal with the similar situation while deciding F.A. No.165/05 Laxmi Sarda v. Mis. Khushalchand and Company and others, vide judgment dated 23.9.2008 [ 2009(1) MPWN 63 ]. His 'Lordship placing reliance on Corpus Juris Secumdum (Vol.II) 49 explaining the word 'adjudicate' as "to adjudicate in its strictest sense; to determine finally; to settle in the exercise of judicial authority; to determine in the exercise of judicial power; to solemnly or deliberately determine by judicial power upon a hearing of the rights and interests of the parties involved on 1 he issues, and the evidence to be taken and submitted according to some prescribed method, or in the absence thereof, the usual method of procedure known to the statutes or the common law, and after a hearing in respect of the matters in issue to decide and decree what are the respective rights of the parties as they may appear from the law and evidence adduced". He further held that the term 'adjudicate' which finds place in Order XXI Rule 58 includes recording the evidence as well. In yet another case Jagdishchandra v. Mis. He further held that the term 'adjudicate' which finds place in Order XXI Rule 58 includes recording the evidence as well. In yet another case Jagdishchandra v. Mis. Gokuldas [1997(1) MPWN 131], it has been held that when a claim filed under Order XXI Rule 58 of the CPC for release of the property attached in the execution proceedings, the same cannot be rejected summarily without taking evidence in the case. Similar was the view taken in the case of Ramkishandas v. Ramjidas and another [1978(1) MPWN 182]. Also see K. Venkarayappa v. Ellen Industries [ AIR 1985 A.P. 261 ]. 15. Without taking recourse of holding inquiry, the executing Court rejected the objection of the appellant filed by him under Order XXI Rule 58 of the CPC by merely observing that the sale has not been confirmed in his favour in execution case No.28-A/02-06 and the dimensions of the property being different both the auctions can proceed. Having regard to the nature of the objection, the dispute between the parties about the identity, description and boundaries of the property as is evident from the various correspondence between the 1st Additional District Judge, Dhar and the Civil Judge, Class I, Badnawar, best course which was open for the 1st Additional District Judge, Dhar to have decided the controversy about the identity and description of the property which was auctioned and sold in favour of the appellant as also the property which has been attached and put to auction by him, by holding an inquiry. Having not done so in my considered view the Court below has misdirected itself in deciding the objection on the basis of irrelevant grounds. 16. In the circumstances the impugned order is not sustainable. Accordingly I have no option but to remit the matter to the executing Court to decide the controversy involved between the parties by holding an inquiry after affording opportunity of leading evidence to the parties. However, in these proceedings at the instance of the appellant I do not feel appropriate to make any observations about the contentions raised by learned senior counsel for the first respondent about the allegations that the appellant being a counsel in the matter he could not have participated or purchased property in the auction in his name in execution proceeding of execution case No.28-A/02-06. I keep the question open to be raised before the appropriate Court at the appropriate stage, in accordance with law, if permissible. 17. In the circumstances I am of the view that the appeal deserves to be allowed and the matter deserves to be remanded to the 1st Additional District Judge, Dhar before whom the execution case No.18-A/02-04 is pending, for adjudication and fresh decision on the objection of the appellant and for deciding the controversy between parties as to which property has been attached and put to auction in case No.28-B/02-06, and if the property is found to be the same property which has been attached and put to auction in execution case No. 18-A/02-04, to decide as to which party has a preferential claim over it. Let the matter be examined by the executing Court after affording opportunity of leading evidence to the parties. Till the question is decided by the executing Court the parties shall maintain the status quo. Parties to appear before the 1st Additional District Judge, Dhar on 19.1.2009. 18. The Court below shall decide the objection as referred to above as expeditiously as possible. The parties shall fully cooperate the executing Court for early disposal of the objection. No orders as to the costs.